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Published 22 September 2007

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REGID NOXD . L. (N) 04/0007/2003-05 रजिस्ट्री सं. डी. एल. ( एन ) 04/0007/2003--05

.....सत्यमेवजयते भारत का राजपत्र The Gazette of India

प्राधिकार से प्रकाशित

PUBLISHED BY AUTHORITY

साप्ताहिक

WEEKLY

नई दिल्ली , सितम्बर 16 सितम्बर 22 , 2007 , शनिवार/ भाद्र 25 - भाद्र 31 , 1929

सं. 38]

NEW DELHI, SEPTEMBER 16-SEPTEMBER 22 , 2007 , SATURDAY / BHADRA 25 - BHADRA31 , 1929 No. 38]

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, 14 सितम्बर , 2007

का.आ. 2672.- केंद्रीय सरकार एतद्वारा दिल्ली विशेष पुलिस स्थापना अधिनियम , 1946 ( 1946 का अधिनियम सं. 25 ) की धारा 6 के साथ पठित धारा 5 की उपधारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए हरियाणा राज्य सरकार के गृह विभाग की अधिसूचना सं. 20/8/2007-3 एच.जी.-1 दिनांक 31-8-2007 द्वारा प्राप्त सहमति से अपराध सं. 232/2007 दिनांक 27-8-2007 के अंतर्गत धारा 302/34 भा. दंड संहिता, 1860 ( 1860 का अधिनियम सं. 45 ) की धारा 25 शस्त्र अधिनियम , 1959 ( 1959 का अधिनियम सं. 54 ) और धारा 3 , अनु. जाति/अनु. जनजाति अधिनियम , 1989 ( 1989 का अधिनियम सं. 33 ) , पुलिस स्टेशन गोहाना , जिला सोनीपत ( हरियाणा ) और उपर्युक्त अपराध से संबंधित अथवा संसक्त प्रयत्नों, दुष्प्ररेणों और षड़यंत्रों तथा उसी संव्यवहार के अनुक्रम में किए गए अथवा उन्हीं तथ्यों से उद्भूत किसी अन्य अपराध अथवा अपराधों का अन्वेषण करने के लिए दिल्ली विशेष पुलिस स्थापना के सदस्यों की शक्तियों और अधिकारिता का विस्तार सम्पूर्ण हरियाणा राज्य पर करती है ।

फा. सं. 228/53/2007 एवीडी- II ]

चन्द्र प्रकाश , अवर सचिव MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS

(Department of Personnel and Training)

New Delhi , the 14th September, 2007

(7441)

S.O. 2672. 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 of 1946), the Central Government with the consent of State Government ofHaryana, Home Department vide Notification No. 20 /8/2007-3 -HG -1 dated 31-8-2007 hereby extends the powers and jurisdiction of the mernbers of the Delhi Special Police Establishment to the whole of the State of Haryana for investigation in Crime No. 232/2007 dated 27-8-2007 under section 302/34 of the Indian Penal Code , 1860 (Act No. 45 of 1860 ) , Section 25 of theArms Act , 1959 (Act No. 54 of 1959) and Section 3 of the Scheduled Castes and the Scheduled Tribes (Prevention of 3725 G1 / 2007 7442

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC. 3 ( ii )] Atrocities) Act, 1989 (Act No. 33 of 1989 ) registered at Police Station Gohana, District Sonepat ( Haryana ) and attempts abetments and conspiracies in relation to or in connection with the offences mentioned above and any other offence or offences committed in the course of the same transaction or arising out of the same facts .

[F. No. 228/53/2007 -AVD- II] CHANDRA PRAKASH, Under Secy.

वित्त मंत्रालय (वित्तीय सेवाएं विभाग ) नई दिल्ली, 10 सितम्बर , 2007

का.आ. 2673. बैंककारी विनियमन अधिनियम , 1949 ( 1949 का 10 ) की धारा 53 द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्रीय सरकार , भारतीय रिजर्व बैंक की सिफारिश पर , एतद्वारा घोषणा करती है कि उक्त अधिनियम की धारा 19 की उपधारा ( 2 ) के उपबंध बैंक ऑफ बड़ौदा पर उस सीमा तक लागू नहीं होंगे जहां तक उनका संबंध प्रस्तावित इटली के मैसर्स पायनियर इंवेस्टमेंट की संयुक्त आस्ति प्रबंधन कंपनी के संयुक्त उद्यम की चुकता शेयर पूंजी के 30% से अधिक की इसकी शेयरधारिता से है ।

[फा. सं. 7/27/2007- बीओए] डी. पी. भारद्वाज , अवर सचिव

MINISTRY OF FINANCE (Department of Financial Services) NewDelhi, the 10th September, 2007

S.O. 2673. In exercise of the powers conferred by Section 53 of the Banking Regulation Act, 1949 (10 of 1949) , the Government of India, on the recommendations of Reserve Bank of India , hereby declares that the provisions of Section 19(2) of the said Act shall not apply to Bank of Baroda in so far as it holds more than 30 % shares in the equity of its proposed Joint Venture Asset Management Company with M/s . Pioneer Investments of Italy .

[F. No. 7 /27/2007- BOA]

D. P. BHARDWAJ , Under Secy.

नई दिल्ली , 13 सितम्बर , 2007

का.आ. 2674.- भारतीय लघु उद्योग विकास बैंक अधिनियम , 1989 , वर्ष 2000 में यथा संशोधित , की धारा ( 6 ) ( 1 ) ( ग ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्र सरकार , एतद्वारा , श्री राकेश सिंह , संयुक्त सचिव , वित्त मंत्रालय , वित्तीय सेवाएं विभाग , को तत्काल प्रभाव से और अगले आदेश होने तक, श्री तरूण बजाज के स्थान पर भारतीय लघु उद्योग विकास बैंक के बोर्ड में निदेशक के रूप में नामित करती है ।

[फा. सं. 24/4/2002- आईएफ -1 ]

एम. साहू, अवर सचिव

New Delhi , the 13th September , 2007

S.O. 2674. In exercise of the powers conferred by Section (6) ( 1 ) ( C) of the Small Industries Development Bank of IndiaAct, 1989 as amended in the year 2000, the Central Government hereby nominates Shri Rakesh Singh , Joint Secretary , Ministry of Finance , Department of Financial Services as Director on the Board of Small Industries Development Bank of Indiawith immediate effect and until further orders vide Shri Tarun Bajaj .

[F. No. 24/4/2002 -IF- I] M. SAHU , Under Secy .

स्वास्थ्यऔर परिवार कल्याण मंत्रालय

(स्वास्थ्यऔर परिवार कल्याण विभाग )

नई दिल्ली , 10 सितम्बर , 2007

का.आ. 2675.--केन्द्रीय सरकर दंत चिकित्सक अधिनियम , 1948 ( 1948 का 16 ) की धारा 10 की उपधारा ( 2 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , भारतीय दन्त चिकित्सा परिषद् से परामर्श करके उक्त अधिनियम की अनुसूची के भाग -1 में एतद्वारा निम्नलिखित संशोधन करती है; अर्थात्: -

2. राजीव गांधी यूनिवर्सिटी आफ हैल्थ साइंसेज , बंगलौर के संबंध में दन्त चिकित्सक अधिनियम , 1948 ( 1948 का 16 ) की अनुसूची के भाग -1 में क्रम सं. 49 के सामने स्तंभ 2 तथा 3 की मौजूदा प्रविष्टियों में निम्नलिखित दंत चिकित्सा कालेज के संबंध में निम्नलिखित प्रविष्टियां रखी जाएंगी:-

"XXII वी. एस. डेंटल कालेज एंड

हास्पिटल, बंगलौर

(ix ) पेडोडान्टिक्स

एम डी एस ( पेडोडान्टिक्स ) (यदि 14-10-2006 को

अथवा उसके बाद प्रदान

राजीव गांधी यूनिवर्सिटी आफ हैल्थ साइंसेंज, बंगलौर " । की गई हो)

[फा. सं. वी. -12017/56/2002- पी एम एस ( डी ई ) ]

राज सिंह, अवर सचिव 7443

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

[ भाग II- खण्ड 3 (ij ) ]

MINISTRY OF HEALTH AND FAMILY WELFARE

(Department of Health and Family Welfare)

NewDelhi , the 10th September , 2007

S.O. 2675. In exercise of the powers conferred by sub - section (2) of Section 10 of the Dentists Act, 1948 (16 of 1948), the Central Government , after consultation with Dental Council of India, hereby makes the following amendments in Part- I of the Schedule to the said Act, namely :--

2. In the existing entries of columns 2&3 against Serial No. 49 , in Part- I of the Schedule to the Dentists Act , 1948 (16of 1948) pertaining to Rajiv Gandhi University of Health Sciences ( RGUOHS ) , Bangalore , the following entries in respect ofthe following Dental College shall be inserted thereunder :--

"XXII . V.S. Dental College & Hospital, Bangalore

(ix) Pedodontics

(When granted on or after 14-10-2006)

MDS (Pedodontics) Rajiv Gandhi University of Health Sciences , Bangalore ."

[F. No. V. - 12017/56/2002- PMS( DE ) ] RAJ SINGH , Under Secy.

नई दिल्ली, 18 सितम्बर , 2007

का.आ. 2676.-स्नातकोत्तर चिकित्सा शिक्षा एवं अनुसंधान संस्थान , चण्डीगढ़, अधिनियम , 1966 ( 1966 का 51 ) की धारा 5 के खण्ड ( छ ) के अनुसरण में श्रीमती सुखवंश कौर के निधन हो जाने के कारण स्नातकोत्तर चिकित्सा संस्थान , चंडीगढ़ के संस्थान निकाय के सदस्य नहीं रहने पर उनके शेष कार्यकाल के लिए श्रीमती विप्लव ठाकुर , सदस्य, राज्य सभा को 21-8-2007 को राज्य सभा द्वारा उक्त संस्थान के एक सदस्य के रूप में सेवा करने हेतु विधिवत् रूप से निर्वाचित किया गया है बशर्ते कि वह स्नातकोत्तर चिकित्सा शिक्षा एवं अनुसंधान संस्थान , चण्डीगढ़ अधिनियम, 1966 के उपबंधों का पालन करती हों ।

[सं. नी. - 17011 / 1 /2006-एम.ई. - 11 ]

बी. नायक, निदेशक

New Delhi , the 18th September , 2007

S.O. 2676. In pursuance of clause (g ) of Section 5 of the Post-Graduate Institute of Medical Education and Research, Chandigarh , Act , 1966 (51 of 1966) Smt . Viplove Thakur , Member , Rajya Sabha has been duly elected on 21-8-2007 by the Rajya Sabha to serve as Member of Post- Graduate Institute of Medical Education and Research , Chandigarh for the remainder term of Smt . Sukhbuns Kaur , who ceased to be a member of the Institute Body due to her demise , subject to the fulfilment of the provisions of Post-Graduate Institute of Medical Education and Research, Chandigarh, Act, 1966 .

[No.V. - 17011 /1 /2006 - Μ.Ε. - II]

B. NAYAK, Director

कृषि मंत्रालय

( कृषि एवं सहकारिता विभाग )

नई दिल्ली, 17 सितम्बर , 2007

का.आ. 2677.- भविष्य निधि अधिनियम , 1925 ( 1925 का 19 ) की धारा 8 की उपधारा ( 2 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, केन्द्र सरकार एतद्वारा निदेश देती है कि उपरोक्त अधिनियम के प्रावधान राष्ट्रीय सहकारी प्रशिक्षण परिषद्, नई दिल्ली के कार्मिकों के लाभार्थ स्थापित किसी भी भविष्य निधि पर लागू होंगे ।

[सं. जे. - 11011 / 1/2007- सीईटी] सतीश चन्द्र, संयुक्त सचिव

MINISTRY OF AGRICULTURE

(Department ofAgriculture and Cooperation )

New Delhi ; the 17th September , 2007

S. O. 2677. In exercise of the powers conferred by sub - section (2) of Section 8 of the Provident Funds Act, 1925 (19 of 1925) , the Central Government hereby directs that the provisions of the said Act shall apply to any Provident Fund established for the benefit of the employees of the National Council for Cooperative Training, New Delhi .

[No. J - 11011/1 /2007- CET] 、 SATISH CHANDER, Jt . Secy.

7444

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II- SEC . 3 ( ii) ] उपभोक्ता मामले , खाद्य और सार्वजनिक वितरण मंत्रालय

( उपभोक्ता मामले विभाग )

भारतीय मानक ब्यूरो

नई दिल्ली, 10 सितम्बरु 2007

का.अ. 2678.-भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम 1988 के नियम 4 के उपनियम ( 5 ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि जिन लाइसेंसों के विवरण नीचे अनुसूची में दिए गए हैं, वे स्वीकृत कर दिए गए हैं :-

अनुसूची

अनुभाग वर्ष क्रम संख्या

लाइसेंस संख्या

स्वीकृत करने की तिथि वर्ष/माह

भारतीय मानक काशीर्षक

भामा भाग संख्या

लाइसेंसधारी का नाम व पता

1.

7757496 4-7-2007

14151 1

1999

सिंचाई उपकरण- स्प्रिंकलर पाइप्स भाग -1 पॉलीथिलीन पाइप्स

पायोनीर पॉलीमर्स 139 , चंद्रमौली को-आपरेटिव इंडस्ट्रीयल इस्टेट मोहोल

जिला-सोलापुर 413213

2.

7758195 5-7-2007

1985

1786

कांक्रीट रीइन्फोर्समेंट के लिए उच्च शक्ति विरूपित स्टील की छड़ें बतारें

खाटूश्यामजी री - रोलिंग (नांदेड) प्रा. लि. डी-121 /भाग , एम आय डीसी, धानेगांव

नांदेड 431602

3. 7760182 -10-7-2007

1417

1999

स्वर्ण और स्वर्ण मिश्रधातु आभूषण/कृत्रिम- शिल्पकृति और चिन्हांकन

सम्राटज्वैलर्स गाला नं 1 , शिव-पार्वतीकॉम्प्लेक्स पेठ-सांगली रोड इस्लामपुर जिला-सांगली 415409

4.

7761083 11-7-2007

14151 2

1999

सिंचाई उपकरण-स्प्रिंकलर पाइप्स- भाग-2 : शीघ्र जोड़ पॉलीथीन पाइप्स

पायोनीर पॉलीमर्स 139 , चंद्रमौली को- आपरेटिव इंडस्ट्रीयल इस्टेट मोहोल जिला-सोलापुर 413213

5.

7761184 12-7-2007

1417

1999

स्वर्ण और स्वर्ण मिश्रधातु आभूषण/कृत्रिम-शिल्पकृति और चिन्हांकन

वीरूमलज्वैलर्स 152/12, सिरू चौक गांधीनगर तालुका-कारवीर जिला-कोल्हापुर 416119

6

7764493 25-7-2007

1999

1417

स्वर्ण और स्वर्ण मिश्रधातु आभूषण/कृत्रिम-शिल्पकृति और चिन्हांकन

सुरेख ज्वैलर्स 287/बी, एम जी रोड पुणे -411001

7.

7764594 17-7-2007

1511

2002

1 और

2

फिनोलेक्स केबल्स लिमिटेड (प्रकाशीय विभाग ) गट संख्या-384 गांव-उरसे तालुका--मावल जिला- पुणे 410506

सामान्य प्रकाशीय सेवाओं के लिए स्वयं प्रस्फुटित लेम्पस, (भाग -1 ) : सुरक्षा आवश्यकताएं और (भाग-2 ) : संपूर्ण आवश्यकताएं

[सं. सीएमडी/ 13 : 11 ]

ए. के. तलवार, उप महानिदेशक ( मुहर ) 7445

भारत का राजपत्र सितम्बर 22 , 2007/भाद्र 31 , 1929

[ भाग II-खण्ड 3 (ii) ]

MINISTRY OF CONSUMER AFFAIRS , FOOD AND PUBLIC DISTRIBUTION

(Department of Consumer Affairs)

BUREAU OF INDIAN STANDARD

NewDelhi , the 10th September, 2007

S.O. 2678.-In pursuance of sub- regulation (5 ) of regulation 4 of the Bureau of Indian Standards(Certification) Regulations 1988 , of the Bureau of Indian Standards , hereby notifies the grant of licences particulars of which are given in the following schedule:

SCHEDULE

Grant Date

Name & Address of the Party

No. Licence

Sl . No.

4-7-2007

7757496

1.

PioneerPolymers 139, Chandramauli Co- op Indl . Estate, Mohol District-Solapur-413213 5-7-2007

7758195

2.

Khatushyamji Re-Rolling (Nanded) Pvt . Ltd. D- 121/Part , MIDC Dhanegaon Nanded-431602 10-7-2007

7760182

3.

Samrat Jewellers GalaNo. 1 Shiv -Parvati Complex Peth- Sangli Road Islampur District , Sangli -415409 4 7761083 11-7-2007 Pioneer Polymers 139 , Chandramauli Co - op Estate, Mohol District , Solapur-413213 12-7-2007

5. 7761184

Veerumal Jewellers 152/12 , Siru Chowk Gandhinagar Taluka - Karveer District, Kolhapur- 416119 25-7-2007

7764493

6.

Surekh Jewellers 287/B , M.G. Road Pune-411001

17-7-2007

7. 7764594

Finolex Cables Ltd. (Lighting Division) GatNo. 384 Village-Urse Taluka-Maval District , Pune- 410506

Year

Section

IS No. Part

Title of the Standard

1999

14151 1

Irrigation equipment Sprinkler pipes - Part 1

1985

1786

High Strength deformed steel bars and wires for concrete reinforcement

1999

1417

Gold and gold alloys Jewellery/ artefacts- Fineness and marking

1999

2

14151

Irrigation equipment Sprinkler Pipes Part - 2 :Quick coupled polyethylene pipes

1999

1417

Gold and gold alloys , Jewellery/ artefacts- Fineness and marking

1999

1417

Gold and gold alloys , jewellery/artefacts Fineness and marking

2002

1& 2

15111

Selfballasted lamps for general lighting services (PartI): Saftey Requirements and (part 2) Performance Requirements

[No. CMD/13 : 11] A.K. TALWAR , Dy . Director General (Marks) 7446

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

[PART II-SEC . 3 (ii) ]

नई दिल्ली , 10 सितम्बर , 2007

का.आ. 2679.- भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम 1988 के विनियम ( 5 ) के उपनियम ( 6 ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि निम्न विवरण वाले लाइसेंसों को उनके आगे दर्शायी गई तारीख से रद्द/स्थगित कर दिया गया है :-

अनुसूची

लाइसेंसधारी का.

लाइसेंस के अंतर्गत वस्तु/प्रक्रम

क्रम संख्या

लाइसेंस संख्या सीएम/एल/

नाम व पता

सम्बद्ध भारतीय मानक का शीर्षक

रद्द/स्थगित करने की तिथि 1.

7737389

भामा 14543 2004

16-7-2007

किशोर अकुवा फूड्स

शैड नं. 81 /एबी

पैकेजबंद पेयजल ( पैकेजबंद प्राकृतिक मिनरल जल के अलावा )

इस्टेट नांगरगांव लोनावाला

लोनावाला इंडस्ट्रीयल तालुका-मावल

जिला-पुणे 410401

[सं. सी एम डी/ 13 : 13 ]

ए. के. तलवार , उप महानिदेशक ( मुहर )

New Delhi , the 10th September, 2007

S.O.2679. In pursuance of sub - regulation (6 ) of the regulation 5 of the Bureau of Indian Standards ( Certification) Regulations 1988 , of the Bureau of Indian Standards , hereby notifies that the licences particulars of which are given below have been cancelled/with effect from the date indicated against each .

f Sl .No. LicenceNo. Name and Address ofthe licensee

Dateof cancellation

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

1.

7737389

IS14543:2004

Kishor Aqua Foods

16-7-2007 Shed No. 81 / AB

Lonavala Industrial Estate

Nangaraon Lonavala

Packaged drinking water (Other than packaged natural mineral water)

Taluka Maval

District Pune- 410401

[No. CMD/ 13 : 13 ]

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

नई दिल्ली , 10 सितम्बर , 2007

का.आ. 2680.- भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम 1988 के विनियम ( 5 ) के उपनियम ( 6 ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि निम्न विवरण वाले लाइसेंसों को उनके आगे दर्शायी गई तारीख से रद्द/स्थगित कर दिया गया है :-

अनुसूची

जुलाई 2007 में रद्द किये गये अनुसूची

क्रम संख्या

लाइसेंस संख्या सीएम/एल/

लाइसेंसीका नाम व पता

उत्पाद का नाम तथा आई एस

अनुज्ञप्ति रद्द करने की तिथि 1.

7735991

मैसर्स राज एंटरप्राइिस ,

पेकेजबंद पेयजल

17-7-2007

14543:2004

ए/25/117 , कृष्णा इंडस्ट्रियल

एस्टेट , बी आई डी सी गोरवा

रोड के सामने ,

बड़ोदा 390016

2.

7732177

पेकेजबंद पेयजल

27-6-2007 मैसर्स राइसिंग एग्रो इंडस्ट्रीज ,

14543:2004

एट पानवाडी , प्लाट नंबर 103 , कपूरा रोड,

सर्वे नंबर 149 , ता वायरा

सूरत

[सं. सी एम डी/ 13 : 13 ]

ए. के. तलवार , उप महानिदेशक ( मुहर ) [भाग II-खण्ड 3 (ii ) ]

7447

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

New Delhi , the 10th September , 2007

S.O. 2680.-In pursuance of sub- regulation (6) of the regulation 5 of the Bureau of Indian Standards ( Certification) Regulations 1988 , of the Bureau of Indian Standards , hereby notifies that the licences particulars of which are given in the following schedule have been cancelled with effect from the date indicated against each .

SCHEDULE

Cancelled licence for the month ofJuly 2007 Sl . No.

LicenseeName LicenceNo.

1.

7735991

M/s.Raj Enterprises , A/25/ 117 Krishna Indı . Estate, Opp . BIDC, Gorwa Road , Vadodara-390016 2.

7732177

M/s. Rising Agro Ind .

atPanvadi , Plot No. 103, Kapura Road , Survey No.149, TaVyara Surat Product & IS No.

Date of Cancel

17-07-2007 Packaged Drinking Water

IS14543: 2004

27-06-2007 PackagedDrinking Water

IS 14543:2004

[No. CMD/13 : 13 ] A. K. TALWAR, Dy. Director General (Marks)

नई दिल्ली, 10 सितम्बर , 2007

का.आ. 2681.- भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम 1988 के नियम ( 4 ) के उपनियम ( 5 ) के अनुसरण में भारतीय मानक ब्यूरो एतद्द्वारा अधिसूचित करता है कि जिन लाइसेंसों के विवरण नीचे अनुसूची में दिए गए हैं , वे स्वीकृत कर दिए गए हैं :-

अनुसूची

जुलाई 2007 में स्वीकृत किये गये अनुज्ञप्ति

लाइसेंस संख्या

क्रम संख्या

लाइसेंसी का नाम तथा पता

(1) (2)

(3)

1.

7756902 मैसर्स महाराना ज्वैलर्स,

शॉप नंबर 1 , लक्ष्मी शापिंग सेंटर , -पुरोहित डेरी के पास ,

गुंजन रोड , जी आई डी सी ,

वापी. वलसाद-396 195 2.

7757092

मैसर्स गोविंदजी ज्वैलर्स ,..

वार्ड नंबर 19 एफ , नंबर 140/1 , शॉप नंबर 314 , शेरी नंबर 5 , विजय काम्पलैक्स , ललिता पार्क सोसाइटी , कांतेश्वर महादेव मंदिर रोड, कट्टरगाम , सूरत

7757294

3.

मैसर्स सुवर्ण आभूषण , 1 , अक्षर पैलेस , कीर्ति डेरी ,

हीरावाडी रोड,

सैजपुर बोधा, अहमदाबाद-382 345

अनुज्ञप्तिस्वीकृत करने की तिथि उत्पाद का नाम तथा आईएस

(4)

(5)

03-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन

आई एस 1417: 1999

03-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के

आभूषणों/शिल्पकारी शुद्धता एवं

मुहरांकन

आई एस 1417: 1999

03-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के

आभूषणों/शिल्पकारी शुद्धता एवं

मुहरांकन

आई एस 1417: 1999 7448

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(2)

(3)

(1)

7757395

4.

वर्धमान ज्वैलर्स, 1211 , रूपा संरचंदी पोल , एम जी हवेली रोड , मानेक चौक , अहमदाबाद-380 001

7758397

5.

मैसर्स जित ज्वैलर्स, बी 13 , रामकृष्णा शॉपिंग सेंटर , मेफेयर रोड , आनंद-388 001

6.

7758502 पदमा ज्वैलर्स , 173 , विहार हाऊसिंग सोसाइटी 2 , वैलीनाथ चौक, सिंगापुर क्रास रोड, राधेश्याम सोसाइटी , वेड रोड, सूरत-395004 7.

7758603

रमेशचंद्र चिमनलाल सोनी , मेन बाजार , युनियन बैंक आफ इंडिया के नीचे, पोस्ट बरेजा, ता दसकराय , अहमदाबाद-382 425

8.

7758704

भावनाज्वैलर्स, देना बैंक के सामने, एम जी रोड, वलसाड -396 001

9.

7758805

मैसर्स जांझरं ज्वैलर्स , संसक्रुट, प्लाट नंबर 1182 , सेक्टर 3 डी, गांधीनगर-382 003

7760384

10.

मैसर्स नकोडा ज्वैलर्स , कृष्णा काम्पलैक्स, हाई स्कूल रोड, पी ओ चिकली, नवसारी -396 521

7760485

11.

मान ओरना, 170, मदन गोपाल एस हवेली रोड , रूपा सूराचांदी पोल के सामने , मानेक चौक , अहमदाबाद -380 001 7760687

12.

मैसर्स रिलायंस रिटेल लिमिटेड , इसकान मैगा माल , राजपथ कल्ब के पास , एस जी मार्ग, जोधपुर अहमदाबाद-380 054 7760889

13.

मैसर्स विशाल गोल्ड पैलेस , ए 1 , रामकृष्णा कालोनी, मंसापुराना महादेव के सामने , गोविंदवाडी, इसनपुर , अहमदाबाद

[PART II- SEC . 3 (ii ) ]

(5) (4)

03-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन अई एस 1417 :1999

06-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999

06-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999

06-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999

06-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417: 1999

06-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999

10-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999

10-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999

11-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417: 1999

11-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों /शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999 [ भाग II-खण्ड 3 ( ii) ]

(2)

(3)

(1)

14.

7761689

मैसर्स स्वाडिया ज्वैलरी हाउस , 5 , शिवालिक काम्पलैक्स, अमीकुज चार रस्ता, नारायणपुरा, अहमदाबाद-380013

7762186

15.

!

मैसर्स जलाराम गोल्ड पैलेस , प्लाट नंबर 5/1 , सेक्टर 3 ए, गांधीनगर-382 006

16.

7762287

श्री हरिदर्शन ज्वैलर्स , 6/7 , परिजात शापिंग सेंटर , स्वामिनारायण मंदिर रोड के पास , कालूपुर , अहमदाबाद

7762388

17.

महावीरज्वैलर्स, उरमिश एपार्टमेंट नंबर 1 , यमुना बाग , छोटा बाजार , सूरत

7757193

18.

मैसर्स गोविंदजी ज्वैलर्स , वार्ड नंबर 19 एफ , नंबर 140/1 , शॉप नंबर 314 , शेरी नंबर 5 , विजय काम्पलैक्स , ललिता पार्क सोसाइटी , कांतेश्वर महादेव मंदिर रोड , कट्टरगाम , सूरत

7758401

19.

मैसर्स जित ज्वैलर्स , बी 13 , रामकृष्णा शॉपिंग सेंटर , मेफेयर रोड , आनंद -388 001 20.

7760788 मैसर्स रिलायंस रिटेल लिमिटेड, इसकान मैगा माल , राजपथ कल्ब के पास , एस जी मार्ग , जोधपुर, अहमदाबाद-380 054

21.

7762489 महावीरज्वैलर्स , उरमिश उपार्टमेंट नंबर 1 , यमुना बाग , छोटा बाजार , सूरत

22.

7761386 शुद्ध जल बिवरेज , 19 , प्रकाश एस्टेट , रीटानगर , वसतरल रोड , अहमदाबाद-380 026 7765596

23 .

थाटिल ज्वैलर्स , 102 , पहली मंजिल , न्यूयार्क प्लाजा, जजिस बंगला रोड , बोडकदेव, अहमदाबाद-380 054

3725G1 /07-2

7449

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

(5) (4)

16-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन

आई एस 1417 :1999

18-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999

19-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन

आई एस 1417 :1999

19-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999

03-07-2007 चांदी एवं चांदी मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं आई एस 2112:2003 मुहरांकन

06-07-2007 चांदी एवं चांदी मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 2112:2003

11-07-2007 चांदी एवं चांदी मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 2112:2003

19-07-2007 चांदी एवं चांदी मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 2112: 2003

13-07-2007 पैकेजबंद पेयजल आई एस 14543 : 2004

25-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन

आई एस 1417:1999 THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

7450

(2)

(3)

(1)

24

7766093 सोनी अमृतलाल पोपटलाल तथा कम्पनी , डां गिरीधर पटेल मार्ग , गुरूनानक चौक, साबरकांटा -385 001 7756801

25

केशवलाल कालिदास चोकसी , चोकसी बाजार , पादरा , वडोदरा 391 440

7758906

26

मैसर्स जांझर ज्वैलर्स, संसक्रुट , प्लाट नंबर 1182 , सैक्टर 3 डी, गांधीनगर 382 003

[PART II-SEC. 3 (ii)]

(5) (4)

18-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/ शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999

03-07-2007 स्वर्ण एवं स्वर्ण मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 1417:1999

6-07-2007 चांदी एवं चांदी मिश्र धातुओं के आभूषणों/शिल्पकारी शुद्धता एवं मुहरांकन आई एस 2112 :2003

[सं. सी एम डी/ 13 : 11 ] ए. के. तलवार , उप- महानिदेशक (मुहर )

New Delhi , the 10th September, 2007

S.O. 2681.- In pursuance of sub - regulation (5) of the Regulation 4 of the Bureau of Indian Standards (Certification) Regulations 1988 , of the Bureau of Indian Standards , hereby notifies the grant of licences particulars of which are given in the following Schedule .

SCHEDULE

Licence No. Licensee Name

Sr. No.

(2)

(3)

(1)

1.

7756902

Maharana Jewellers , Shop No. 1 , Laxmi Shopping Centre , Near Purohit Dairy , GunjanRoad,GIDC, Vapi, Valsad -396195

2.

7757092 Govindji Jewellers, Ward No. 19 F, Nond No. 140/1 , Shop No. 314, Sheri No. 5 , Vijay Complex, Lalita Park Society , Kantareswar Mahadev Mandir Road , Katargam , Surat

3.

7757294

Suvarn Aabhushan 1, Akshar Palace , Near Kirti Dairy , Hirawadi Road, Saipur Bagha , Ahmedabad- 382345

4.

7757495

Vardhman Jewellers 1211 , Rupa Surchandni Pole , M.G. Haveli Road , Manek Chowk , Ahmedabad- 380001

5.

7758397 JitJewellers , B- 13 , Ramkrishna Shopping Centre , Mayfair Road , Anand - 388001

Date of GOL Product & IS No.

(5)

(4)

03/07/2007 Gold andGold Alloys, Jewellery/Artefacts- Fineness and Marking IS1417:1999

03/07/2007 Gold and GoldAlloys , Jewellery/Artefacts- Fineness and Marking IS1417:1999

03/07/2007 Jewellery/Artefacts- Gold and GoldAlloys , Fineness and Marking IS 1417: 1999

03/07/2007 Gold and Gold Alloys , Jewellery/Artefacts- Fineness and Marking IS 1417 : 1999

06/07/2007 Jewellery/Artefacts- Fineness and Marking IS 1417: 1999 Gold and Gold Alloys , 7451

भारत का राजपत्र सितम्बर 22 , 2007/भाद्र 31 , 1929

[ भाग II खण्ड 3 ( ii) ]

(3)

(1) (2)

6.

7758502

Padma Jewellers , 173 , Vihar Housing Society- 2 , Valinath Chowk , Singapore Cross Roads , Opp . Radheshyam Society, Ved Road, Surat- 395004

7.

7758603

Rameshchandra Chimanlal Soni , Main Bazar, Below Union Bank of India , Post: Bareja, Tal : Dascroi , Ahmedabad 382425 7758704

8.

Bhavna Jewellers , Opp. Dena Bank, M.G. Road , Valsad- 396001

9.

7758805

Zanzar Jewellwers , "Sanskrut" , Plot No. 1182, Sector -3 -D, Gandhinagar- 382 003

10. 7760384

Nakoda Jewellers , Krishna Complex , High School Road, P.O. Chikhli Navsari - 396 521 7760485

11.

Mann Orna 170, Madan Gopal's Haveli Road , Opp. Rupa Surachandni Pole , Manek Chowk , Ahmedabad -380001 12. 7760687 Reliance Retail Limited Iscon Mega Mall , Near Rajpath Club , S.G. Marg , Jodhpur Ahmedabad-380054

13. 7760889

Vishal Gold Palace, A- 1, Ramkrishna Colony, Opp . Mansapurna Mahadev , Govindpuri , Isanpur Ahmedabad380043

14.

7761689 Swadia's Jewellery House , 5, Shivalik Complex , Amikunj Char Rasta, Naranpura , Ahmedabad- 380013

7/62186

15.

Jalaram Gold Palace , Plot No : 5/1 , Sector - 3 A, Gandhinagar- 382006

16. 7762287

Shri Haridarshna Jewellers , 6/7, Parijat Shopping Centre , Near Swami- narayan Mandir Road, Kalupur , Ahmedabad

17. 7762388 Mahavir Jewellers , Urmish Apartment No. 1 , Yamuna Baug , Chauta Bazar , Surat

(5)

(4)

06/07/2007 Gold and GoldAlloys , Jewellery/Artefacts- Fineness and Marking IS 1417:1999

06/07/2007 Gold andGold Alloys , Jewellery /Artefacts- Fineness and Marking IS 1417: 1999

06/07/2007 Gold and Gold Alloys , Jewellery/Artefacts- Fineness and Marking IS1417:1999

06/07/2007 Gold and GoldAlloys , Jewellery/Artefacts- Fineness and Marking IS 1417 :1999

10/07/2007 Gold andGold Alloys , Jewellery /Artefacts- Fineness and Marking IS1417: 1999

10/07/2007 Gold andGold Alloys , Jewellery/Artefacts- Fineness and Marking IS 1417: 1999

11/07/2007 Gold and Gold Alloys , Jewellery /Artefacts- Fineness and Marking IS 1417:1999

11/07/2007 Gold andGold Alloys , Jewellery/Artefacts- Fineness and Marking IS 1417 : 1999

16/07/2007 Gold andGoldAlloys , Jewellery/Artefacts- Fineness and Marking IS 1417:1999

18/07/2007 GoldandGoldAlloys , Jewellery /Artefacts- Fineness and Marking IS 1417: 1999

19/07/2007 Gold and Gold Alloys , Jewellery/Artefacts- Fineness and Marking, IS 1417:1999

19/07/2007 Gold andGold Alloys , Jewellery /Artefacts- Fineness and Marking IS 1417: 1999 7452

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

(1)

(3)

(2)

7757193

18.

Govindji Jewellers , Ward No. 19 F, Nond No. 140/01 , Shop No. 314, Sheri No. 5 , Vijay Complex , Lalita Park Society, Kantareswar Mahadev Mandir Road , Katargam , Surat 19. 7758401

TitJewellers B-13 , Ramakrishna Shopping Centre, Mayfair Road, Anand 388001 20.

7760788

Reliance Retail Limited . IsconMega Mall , Near Rajpath Club , S.G. Marg , Jodhpur Ahmedabad 380054 21.

7762489 Mahavir Jewellers , Urmish Apartment No. 1 , Yamuna Baug , Chauta Bazar , Surat

22.

7761386

Sudh Jal Beverages 19, Prakash Estate , Ritanagar, Vastral Road, Ahmedabad - 380026 7765596

23.

Thattil Jewellers 102, First Floor , New York Plaza , Judges Bunglos Road, Bodakdev , Ahmedabad- 380054

24.

7766093

Soni Amrutlal Popatlal and Co. , Dr.Girdhar Patel Marg , Gurunanak Chowk , Sabarkantha - 385001

25.

7756801

Keshavial Kalidas Choksi , Choksi Bazar, Padra, Vadodara -391440

26. 7758906

Zanzar jewellers "Sanskrut", Plot No 1182, Sector-3 -D, Gandhinagar - 382003

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

(5)

03/07/2007 Silver and Silver Alloys , Jewellery/Artefacts- Fineness and Marking IS 21 :12 :2003

06/07/2007 Silver and Silver Alloys , Jewellery/Artefacts- Fineness and Marking IS2112 : 2003

11/07/2007 Silver and Silver Alloys , Jewellery/Artefacts- Fineness and Marking IS2112:2003

19/07/2007 Silver and Silver Alloys , Jewellery/ Artefacts- Fineness and Marking IS2112 :2003

13/07/2007 Packaged Drinking Water . IS 14543 : 2004

25/07/2007 Gold and Gold Alloys , Jewellery/Artefacts- Fineness and Marking IS 1417 :1999

18/07/2007 Gold and Gold Alloys , Jewellery/Artefacts- Fineness and Marking IS 1417: 1999

03/07/2007 Gold and GoldAlloys , Jewellery/Artefacts- Fineness and Marking IS 1417 : 1999

06/07/2007 Silver and Silver Alloys , Jewellery/Artefacts- Fineness and Marking IS 2112:2003

[No. CMD/13: 11 ] A. K. TALWAR, Dy. Director General (Marks)

नई दिल्ली , 12 सितम्बर , 2007

का.था. 2682, -भानानक ब्यूरो ( प्रमाणन ) नियम , 1987 के नियम 7 के उपनियम ( 1 ) के खंड ( ख) के अनुसरण में एतद्वारा अधिसूचित किया जाता है त्रिज भारतीय मानकों के विवरण नीचे अनुसूची में दिए गए हैं, वे रद्द कर दिए गए हैं और वापस ले लिये गये हैं :

अनूसूची

रद्द किये गये मानक की संख्या

क्रम संख्या और २०:

(1)

(2)

1.

'आई एस 1329 1975 वायुयान टिम्बर की विशिष्टि (चौकार ) और फट्टियाँ ) ( प्रथम पुनरीक्षण)

टिप्पणी

भारत के राजपत्र भाग 2 , खंड 3 , उपखंड ( ii ) में का.आ. संख्या और तिथि प्रकाशित

(3)

(4)

का. आ. संख्या 1596 दिनांक 10-05-1979 [ भाग II-खण्ड 3 ( ii ) ]

(1)

(2)

2.

आई एस 2178 : 1962. वायुयान नोदक के निर्माण में प्रयुक्त टिम्बर कीविशिष्टि

3.

आई एस 3805 : 1979 पेंट-टॉप लकड़ी के केसों की विशिष्टि (प्रथम पुनरीक्षण)

4.

आई एस 7630 : 1975 प्लाईवुड के ड्रमों की विशिष्टि

7453

भारत का राजपत्र सितम्बर 22 , 2007/ भाद्र 31 , 1929

(3)

(4)

का.आ. संख्या 0483 दिनांक 16-02-1963

का.आ. संख्या 2584 दिनांक 03-10-1981

का. आ. संख्या 3081 दिनांक 08-10-1977

[संदर्भ: सीईडी/राजपत्र] ए. के सैनी , वैज्ञानिक ' एफ ' एवं प्रमुख ( सिविल इंजीनियरी )

NewDelhi , the 12th September , 2007

S.O. 2682.- In pursuance of clause ( b ) of sub - rule ( 1 ) of Rule 7 of the Bureau of Indian Standards Rules , it is hereby notified that the Indian Standards , particulars of which are mentioned in the Schedule given hereafter , have been cancelled and stand withdrawn .

Sr. No.

No. & Year of the Indin Standards Cancelled (1)

(2)

1.

IS 1329 : 1975 Specification forAircraft timber ( baulks and scantlings ) ( First revision) 2.

IS 2178 : 1962 Specification for Timber for use in aircraft propeller construction 3.

IS 3805: 1979 Specification for pent- top wooden cases (Firstrevision)

4.

IS 7630 : 1975 Specification forPlywood drumps

SCHEDULE

Remarks S.O. No. & Date published in the Gazette of India , Part- II , Section - 3 , Sub section ( ii )

(3)

(4) .

S.O. No. 1596 Dated 10-05-1979

S.O. No. 0483 Dated 16-02-1963

S.O. No. 2584 Dated03-10-1981

S.O. No. 3081 Dated 08-10-1977

[Ref: CED/Gazette ] A. K. SAINI , Sc . ' F' & Head ( Civil Engg . )

नई दिल्ली , 13 सितम्बर , 2007

का. आ. 2683.- भारतीय मानक ब्यूरो नियम 1987 के नियम 7 के उपनियम ( 1 ) के खंड ( ख ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि नीचे अनुसूची में दिये गये मानक ( कों ) में संशोधन किया गया/किये गये हैं :

अनूसूची

संशोधन की संख्या और तिथि

संशोधित भारतीय मानक की संख्या और वर्ष

क्रम संख्या

(1)

(2)

संशोधन लागू होने की तिथि

(3)

.(4)

संशोधन संख्या 2 अगस्त 2007

1.

आईएस 758:1988

2.

सितम्बर 2007

सितम्बर 2007

संशोधन संख्या 4 अगस्त 2007

आई एस 863: 1988

इस संशोधन की प्रति 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 , पूणे तथा तिरूवनन्तापुरम में बिक्री हेतु उपलब्ध हैं ।

[संदर्भ: टी एक्स/जी -25 ] एम. एस. वर्मा , निदेशक एवं प्रमुख ( टीएक्सडी ) 7454

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

[PART II- SEC . 3 ( ii ) ]

New Delhi , the 13th September , 2007

S.O. 2683.- In pursuance of clause (b ) of sub -rule ( 1 ) of Rule 7 of the Bureau of Indian Standards Rules , 1987 , theBureau 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

Sl . No.

No. and year of the Indian Standards

No. and year of the

amendment

Date from which the amendment shall have effect

(1)

(2)

(3)

(4)

1.

IS 758: 1988

Amendment No. 2 August 2007

September 2007

2

IS863 : 1988

September2007

Amendment No. 4 August 2007

Copy of these Amendments are 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 , Bhubneshwar , Coimbatore , Guwahati , Hyderabad , Jaipur , Kanpur , Nagpur , Patna , Pune , Thiruvananthapuram.

[Ref: TXD/G- 25]

M. S. VERMA , Director & Head (Textiles)

नई दिल्ली , 14 सितम्बर , 2007

का.आ. 2684.- भारतीय मानक ब्यूरो नियम 1987 के नियम 7 के उपनियम ( 1 ) के खंड ( ख ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि अनुसूची में दिये गये मानक ( कों ) में संशोधन किया गया/ किये गये हैं :

अनूसूची

संशोधित भारतीय मानक (कों) की

क्रम संख्या संख्या वर्ष और शीर्षक

संशोधन लागू होने की तिथि

नये भारतीय मानक द्वारा अतिक्रमित भारतीय मानक अथवा मानकों, यदि कोई हो , की संख्या और वर्ष

(1)

(2)

(3)

(4)

1.

आईएस 11999 : 1987

30जून 2007

आईएस 11999 :2007- धातुओं की चद्दर के लिए प्लास्टिक स्ट्रेन अनुपात ' आर ' ज्ञात करने की पद्धति ( पहला

पुनरीक्षण)

इन संशोधनों की प्रतियाँ भारतीय मानक की प्रतियाँ 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 , पूणे तथा तिरूवनन्तापुरम में बिक्री हेतु उपलब्ध हैं ।

[संदर्भ: एमटीडी 3/टी-103 ]

डा. ( श्रीमति ) स्नेह भाटला , वैज्ञानिक ' एफ ' एवं प्रमुख ( एमटीडी) New Delhi , the 14th September , 2007

S.O. 2684.-In pursuance of clause ( b ) of sub - rule ( 1 ) of Rule 7 of the Bureau of Indian Standards Rules , 1987 , the Bureau of Indian Standards hereby notifies that the Indian Standards , particulars of 7455 [भाग II खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

which are given in the Schedule hereto annexed have been established on the date indicated against each :

SCHEDULE

Date of. Established Sl . No.

No. & Year of the Indian Standards Established

No. & year of Indian Standards , if any , Superseded by the New Indian Standard

(4)

(3)

(2)

(1)

30-06-2007

IS 11999 : 1987

1 .

IS 11999 : 2007 Method for Determination of Plastic. Strain Ratio ' r ' for Sheet Metals (First revision)

Copy of this Standard is available for sale with the Bureau of Indian Standards , Manak Bhavan , 9 Bahadur Shah ZafarMarg , 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 3 /T - 103 ]

DR. (Mrs. ) SNEH BHATLA, Scientist ' F ' & Head (Met Engg)

नई दिल्ली , 14 सितम्बर , 2007

का.आ. 2685.- भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम 1988 के नियम 4 के उपनियम ( 5 ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि जिन लाइसेंसों के विवरण नीचे अनुसूची में दिए गए हैं, वे स्वीकृत कर दिए गए हैं:-

अनूसूची

अनुभाग वर्ष

भा मा भाग संख्या

भारतीय मानक काशीर्षक

लाइसेंसंधारी का नाम व पता

लाइसेंस संख्या

स्वीकृत करने की तिथिवर्ष/माह

क्रम संख्या

(9)

(7) (8)

(4)

(5)

(6)

(2)

(3)

(1)

2002 26-07-2007 '

7764897

1

5780

जयश्री इलैक्ट्रॉन प्रा. लि. ईएल-34 , जे ब्लॉक , एमआयडीसी,

विस्फोटक गैस वातावरण हेतु विद्युतीय उपकरण आंतरिक सुरक्षा-आई

भोसरी पुणे -411026

1990

694

26-07-2007 कोठारी केबल्स

7764901

2

ऑपरेटिव इंडस्ट्रीयल

1100 वो तक और सहित कार्यकारिता के लिए पीवीसी इंशुलेटेड केबल्स

158 , चंद्रमौली को- इस्टेट, मोहोल ,

सोलापुर-413213

1999

1417

31-07-2007 संतोक पेधी

7766295

3

348 , सेंटर स्ट्रीट ,

स्वर्ण और स्वर्ण मिश्रधातु आभूषण/कृत्रिम - शिल्पकृति और चिन्हांकन

पुणे-411001

1999

1417

4

डागीना

01-08-2007

7766396

576, सदाशिव पेठ

स्वर्ण और स्वर्ण मिश्रधातु आभूषण/ कृत्रिम- शिल्पकृति और चिन्हांकन

लक्ष्मी रोड दुल्हन सांड़ी के सामने

पुणे -411030 7456

THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

[PART II SEC . 3 ( ii) ] (1) (2)

(3)

(4)

(5)

(6) (7) (8) (9) 5.. 7766501 01-08-2007 एवरेस्टकेंटो सिलिण्डर

2004

ऑन बोर्ड भंडारण हेतु कंप्रेस्ड 15490 प्राकृतिक गैस सिलिंडर स्वचालित वाहनों के उपयोग के लिए ईंधन के रूप में

लिमिटेड, प्लॉट नं. ई -22, एम आय डी सी इंडस्ट्रीयल एरिया चिकलथाना , औरंगाबाद--431 210

6.

7762994 01-08-2007

2004

14543

पैकेजबंद पेयजल (पैकेजबंद प्राकृतिक मिनरल जल के अलावा)

अकुआ हेल्थ प्रॉडक्ट्स गट संख्या 34, नांदेड - नागपुर हाइवे दाभाद ( बाबापुर )

जिला-नांदेड -431602

7.

7769305 10-08-2007

1417

1999

स्वर्ण और स्वर्ण मिश्रधातु आभूषण/कृत्रिम- शिल्पकृति और चिन्हांकन

सत्यापेधी 560 , सेंटर स्ट्रीट, कैंप , पुणे -411001

8.

7769911 13-08-2007

458

2003

प्रीकॉस्टकांक्रीट पाइप्स ( रीइन्फोर्समेंट सहित एवं रहित )

कला इंडस्ट्रीज , सर्वे नं. 12/1/1 नरगेगांव कात्रज-धायरी रोड तालुका- हवेली जिला-पुणे-411041

[सं. सी एम डी/ 13 : 11 ]

ए. के. तलवार, उप- महानिदेशक ( मुहर )

New Delhi , the 14th September, 2007

S.O. 2685. In pursuance of sub - regulation (5) of regulation 4 of the Bureau of Indian Standards ( Certification ) Regulations 1988 , of the Bureau of Indian Standards , hereby notifies the grant of licences particulars of which are given in the following schedule .

SCHEDULE

Title of the Standard

Section Year

ISNo. Part

Sl. No.

Licence No.

Grant Date

Name& Address of the Party

1 2

3

4

5

6

7

8

9 1.

5780

7764897 26-7-2007 Jayashree Electron Pvt. Ltd. ,

2002- EL- 34 , ' J ' Block MIDC , Bhosari ,

Pune-411026

Electrical apparatus for explosive gas atmospheres- intrinsic safety ' i '

2. 7764901 26-7-2007

694

1990 Kothari Cables 158 , Chandramauli Co- op Indl Estate ,

PVC insulated cables for working voltages upto and including 1100-V

Mohol Solapur - 413213

3. 7766295 31-7-2007 Santok Pedhi

1417

1999 348 , Centre Street, Pune-411001

7766396 1-8-2007

4.

1417

Dagina

1999 576 , Sadashiv Peth

Gold and gold alloys , Jewellery/artefacts- Fineness and marking Gold and gold alloys , Jewellery/ artefacts-

Fineness and marking

Laxmi Road, Opposite Dulhan Sarees

Pune-411030

5. 7766501 1-8-2007

2004

15490

Everest Kanto Cylinder Ltd. , Plot No. E- 22 , MIDC Indl . Area , Chikalthana, Aurangabad-431210

Cylinders for on board storage of compressed natural gas as a fuel for automotive vehicles [भाग II-खण्ड 3 ( ii ) ]

3

4

1 2

1-8-2007

6. 7762994

AquaHealth Products

GutNo. 34, Nanded-Nagpur Highway , Dabhad (Babapur) District Nanded-431602 7.

10-8-2007

7769305

Satya Pedhi , 560, Centre Street , CampPune- 411001 8.

13-8-2007

7769911

Kala Industries , Sr. No. 12/1/1 Nargegaon Katraj -Dhayari Road , TalukaHaveli , District Pune-411041

7457

भारत का राजपत्र : सितम्बर 22, 2007 /भाद्र 31 , 1929

8

9

7

5

6

2004

14543

Packaged drinking water (Other than packaged natural mineral water)

1417

1999 Gold and gold alloys , Jewellery/artefacts- Fineness and marking

2003 Precast concrete pipes 458 (with and without reinforcement )

[No. CMD/ 13 : 11 ] A. K. TALWAR, Dy. Director General (Marks )

नई दिल्ली , 17 सितम्बर , 2007

का.आ. 2686.- भारतीय मानक ब्यूरो (प्रमाणन ) विनियम , 1988 के विनियम ( 5 ) के उपनियम ( 6 ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि जिन लाइसेंसों के विवरण नीचे अनुसूची में दिए गए हैं, वे स्वीकृत कर दिए गए हैं:-

लाइसेंसधारी का नाम व पता

चालूतिथि

लाइसेंस संख्या

क्रम संख्या

(1)

(3)

(4) (2)

अगस्त 2007

1.

8846403 26-07-2007 मैसर्स गैलेक्सी कोनकैब ( इ. ) प्रा. लि. , जी-164 , 164 ए, सीतापुरा औद्योगिक क्षेत्र , जयपुर (राजस्थान ) 2.

8846302 26-07-2007 मैसर्स गैलेक्सी कोनकैब ( इ. ) प्रा. लि. , जी-164 , 164 ए , सीतापुरा औद्योगिक क्षेत्र , जयपुर, ( राजस्थान ) 3. 8848003 31-07-2007 मैसर्स ईश्वर केबल्स ( प्रा. ) लि. , एफ-661 , रोड नं. 9 एफ 2 विश्वकर्मा औद्योगिक क्षेत्र , जयपुर-302 013 ( राजस्थान )

4.

8848104 31-07-2007 मैसर्स ईश्वर केबल्स (प्रा. ) लि. , एफ-661 , रोड नं. 9 एफ 2 विश्वकर्मा औद्योगिक क्षेत्र, जयपुर-302013 ( राजस्थान )

5.

8848205 31-07-2007 मैसर्स ईश्वर केबल्स ( प्रा. ) लि. , एफ-661 , रोड नं. 9 एफ 2 विश्वकर्मा औद्योगिक क्षेत्र , जयपुर-302 013 ( राजस्थान )

6.

8847708 31-07-2007 मैसर्स भारत पोलीकैम इण्डस्ट्रीज एफ-334 , मेवाड औद्योगिक क्षेत्र , मादरी, उदयपुर-313001 ( राजस्थान )

3725G1 /07-3

अनुसूची

भारतीय मानक का शीर्षक व संबंधित भारतीय मानक

(5)

1554 ( भाग 1 ) : 1988 पीवीसी इन्सुलेटेड ( एचडी ) केबल्स

7098 ( भाग 1 ) : 1988 एक्सएलपीई इन्सुलेटेड पीवीसी केबल्स

694 : 1990 पीबीसी इन्सुलेटेड केबल्स

7098 ( भाग 1 ) : 1988 एक्सएलपीई इन्सुलेटेड पीवीसी केबल्स

1554 ( भाग 1 ) : 1988 पीवीसी इन्सुलेटेड ( एचडी )

केबल्स

9537 ( भाग 3 ) : 1983

रिजिड प्लेन कन्ड्यूट्स फॉर इन्सुलेटिंग मैटेरियल्स 7458

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(1) (2)

(3)

(4) 7.

8847910 31-07-2007 मैसर्स बोन्टन केबल्स प्रा. लि.. ए-114-115 , रीको औद्योगिक क्षेत्र , फेज-1 , मिवाडी-301 019 जिला- अलबर , ( राजस्थान ) 8.

8848710 03-08-2007 मैसर्स चलपोत ज्वैलर्स , पहली मंजिल , द्वारकेश मार्केट , बस स्टेण्ड , कांकरोली , जिला- राजसमंद -313324 ( राजस्थान ) 9. 8849106 08-08-2007 मैसर्स स्वास्तिक टाईल्स , एफ-660-661 ए , नार्थ एक्सटेंशन , मत्स्यऔद्योगिक क्षेत्र , अलवर , ( राजस्थान ) 10. 8849611 08-08-2007 मैसर्स न्यू अंबिका ज्वैलर्स , लंकारो की पोल के सामने, भैरूं बाजार , बालोतरा , जिला- बाड़मेर-334 002 ( राजस्थान ) 11.. 8849005 08-08-2007 मैसर्स स्वास्तिक टाईल्स , एफ-660-661 ए , नार्थ एक्सटेंशन , मत्स्यऔद्योगिक क्षेत्र , अलवर , ( राजस्थान ) 12.

$850087 09-08-2007 मैसर्स फरकोन इंजीनियर्स कॉर्पोरेशन एफ-383 , रोड नं. 9 एफ विश्वकर्मा औद्योगिक क्षेत्र , जयपुर-302013 ( राजस्थान ) 13. 8850794 10-08-2007 मैसर्स जितेन्द्र इण्डस्ट्रीज एफ-207 , माण्डिया रोड , डीआईसी ऑफिस के पास , पली-मारवाड-306 401 जिला पाली , ( राजस्थान ) 14. 8850592 09-08-2007

जयपुर-302 0.13 ( राजस्थान ) मैसर्स ईश्वर मैटल इण्डस्ट्रीज , एफ -79 बी, रोड नं. 6 , विश्वकर्मा औद्योगिक क्षेत्र ,

15. 8850491 09-08-2007 मैसर्स ईश्वर मैटल इण्डस्ट्रीज , एफ-79 बी , रोड नं. 6 , विश्वकर्मा औद्योगिक क्षेत्र , जयपुर-302013 ( राजस्थान) 16. 8850693 09-08-2007 मैसर्स ईश्वर मैटल इण्डस्ट्रीज, एफ-79 बी, रोड नं. 6 , विश्वकर्मा औद्योगिक क्षेत्र, जयपुर-302013 ( राजस्थान ) 17. 8851796 16-08-2007 मैसर्स श्री अग्रसेन इण्डस्ट्रीज , ई-293 ( ए) रोड नं. 14 , विश्वकर्मा औद्योगिक क्षेत्र , जयपुर-302 013 ( राजस्थान ) 18. 8852394 16-08-2007 मैसर्स वैष्णव पैकेज्ड ड्रिंकिंग वॉटर , प्लॉट नं. 13 एवं 14 मण्डाल्दा, चित्तौडगढ़ , ( राजस्थान ) 19. 8852596 13-08-2007 मैसर्स पॉवर केबल इण्डस्ट्रीज , जी-1/801 , सीतापुरा औद्योगिक क्षेत्र , जयपुर-302 022 ( राजस्थान) [PART II-SEC . 3( ii) ] (5)

694 : 1990 पीवीसी इन्सुलेटेड केबल्स 2112 : 2003 रजत आभूषणों की हॉलमार्किंग 13801 : 1993 चैकर्ड सीमेन्ट कॉक्रीट टाइल्स 1417 : 1999 स्वणांभूषणों की हॉलमार्किंग 1237 : 1980 सीमेन्टकॉक्रीट फ्‌लोरिंग टाईल्स 7098 ( भाग 1 ) : 1988 सक्सएलपीई इन्सुलेटेड पीवीसी केबल्स

14151 ( भाग 2 ) : 1999 क्यूसीपीई पाईप्स

1554 ( भाग 1 ) : 1988 पीवीसी इन्सुलेटेड ( एचडी ) केबल्स

14255 : 1995 एरियल बन्च्ड केबल्स

7098 ( भाग 1 ) : 1988 एक्सएलपीई इन्सुलेटेड पीवीसी केबल्स

398 ( भाग 2 ) : 1996 ए. सी. एस. आर.

14543 : 2004 पैकेज्ड ड्रिंकिंग वॉटर

7098 ( भाग 1 ) : 1988 एक्सएलपीई इन्सुलेटेड पीवीसी केबल्स [ भाग II- खण्ड 3( ii) ]

7459

भारतका राजपत्र : सितम्बर 22 , 2007/भाद्र 3.1 , 1929

(2)

(4) (1)

(3)

20. 8852701 17-08-2007 मैसर्स सिद्वा सीमेन्ट्स प्रा. लि. , प्लॉट नं. जी-1-101 , रीको औद्योगिक क्षेत्र , बहरोड , जिला-अलवर , ( राजस्थान ) 21. 8852697 17-08-2007 मैसर्स सैलेश सिमेन्ट उद्योग ( प्रा. ) लि. , ए-21-बी, रीको औद्योगिक क्षेत्र , बहरोड , जिला-अलवर-301 701 ( राजस्थान )

21-08-2007

22. 8853093

मैसर्स संतोष उद्योग , एफ-727 , रोड नं. 9 एफ 3 , विश्वकर्मा औद्योगिक क्षेत्र , जयपुर-302013 ( राजस्थान ) 8852903

23.

17-08-2007 मैसर्स डी. एस. इण्डस्ट्रीज , एफ-424 ( ए ) , मरूधर औद्योगिक क्षेत्र फेज- II , बासनी , जोधपुर -342 003 ( राजस्थान ) 8853396

24.

21-08-2007 मैसर्स जयपुर वायर एण्ड केबल्स, जी-509- बी, रोड नं. 9 ए , विश्वकर्मा औद्योगिक क्षेत्र , जयपुर-302 013 ( राजस्थान) 25. 8853602 22-08-2007 मैसर्स नवरतन पाईप एण्ड प्रोफाईल लि. , एसपी -6 , रीको औद्योगिक क्षेत्र , खुशखेड़ा , जिला-अलवर ( राजस्थान ) 26. 8854196 22-08-2007

एफ-255 ए , रोड नं. 13 , विश्वकर्मा औद्योगिक क्षेत्र , मैसर्स सूर्याश इलैक्ट्रिकल इण्डस्ट्रीज , जयपुर-302 013 ( राजस्थान ) 27. 8854297 22-08-2007 मैसर्स जयन्ती कोल्ड स्टोरेज , राजगढ़ रोड, ग्राम - दादर जिला-अलवर-301 003 ( राजस्थान ) 28. 8846504 26-07-2007 मैसर्स आदित्य एसोसिएटेड एजेन्सीज , सी-5 , लाल कोठी शॉपिंग सैन्टर , टौंक रोड, जयपुर ( राजस्थान ) 29. 8846605 26-07-2007 मैसर्स आदित्य एसोसिएटेड एजेन्सीन , सी-5 , लाल कोठी शॉपिंग सैन्टर , टौंक रोड, जयपुर (राजस्थान) ( 5)

8112 : 1989 43ग्रेड ओपीसी

8112 : 1989 43ग्रेड ओपीसी

8794: 1988 सीआईडी ज्वाईंट्स

9537 ( भाग 3 ) : 1983 रिजिड प्लेन कन्ड्यूट्स फॉर इन्सुलेटिंग मैटेरियल्स

694: 1990 पीवीसी इन्सुलेटेड केबल्स 1239 ( भाग 1 ) : 2004 माइल्ड स्टील ट्यूब्स

एरियल बन्च्ड केबल्स 14255 : 1995

14543 : 2004 पैकेजड ड्रिंकिंग वाटर

8846504

1417 : 1999 स्वर्णाभूषणों की हॉलमार्किंग 2112 : 2003 रजत आभूषणों की हॉलमार्किंग

[सं. सी एम डी/ 13 : 11 ] ए. के. तलवार उप- महानिदेशक (मुहर )

New Delhi , the 17th September , 2007

S.O. 2686. In pursuance of sub - regulation (5 ) of regulation 4 of the Bureau of Indian Standards ( Certification) Regulations , 1988 , the Bureau of Indian Standards , hereby notifies the grant of licence particulars of which are given in the following Schedule.

SCHEDULE

Name and Address of the Licensee

Operative Date

S1. Licence No. No. (CM/L- )

(4) (1) (2)

(3)

August 2007

26-07-2007

1. 8846403

M/s.Galaxy Concab (I ) Pvt . Ltd. , G-164-164A, Sitapura Industrial Area, Jaipur, Rajasthan Article/Process Coveredby the licences and the relevant IS: Designation

(5)

1554 (Part 1 ) : 1988 PVC Insulated (HD) Cables 7460

(1) (2)

(3) 2, 8846302

26-07-2007 3. 8848003

31-07-2007 4. 8848104

31-07-2007 5. 8848205

31-07-2007 6. 8847708

31-07-2007 7. 8847910

31-07-2007 8. 8848710

03-08-2007 9. 8849106

08-08-2007 10. 8849611

08-08-2007 11. 8849005

C08-2017 12. 8850087

09-08-2007

[PART II-SEC. 3 ( ii) ]

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(4)

(5)

7098 (Part I) : 1988 XLPE Insulated PVC Cables

M/s.Galaxy Concab (I) Pvt . Ltd., G- 164-164A Sitapura Industrial Area , Jaipur, Rajasthan

694: 1990 PV Insulated Cables

M/ s. Ishwar Cables ( Pvt. ) Ltd. , F-661 , Road No. 9F2 , V. K. I. Area Jaipur -302013 , Rajasthan

7098 (Part) : 1988 XL PE Insulated Cables

M/ s . Ishwar Cables (Pvt . ) Ltd. , F-661 , Road No. 9F2 , V. K. I. Area Jaipur- 302013 Rajasthan

1554 (Part 1 ) : 1988 PVC Insulated (HD) Cables

M/s . Ishwar Cables (Pvt . ) Ltd. , F-661 , Road No. 9F2 , V. K. I. Area Jaipur- 302013 , Rajasthan

9537 (Part 3 : 1983 Rigid Ponduits for InsulatiMaterials

M/ s . Bharat Polychem Industries , F-334 , Mewar Industrial Area, Madri , Udaipur- 313001 Rajasthan

694: 1990 PVC Insulated Cables

M/ s. Bonton Cables Pvt . Ltd. , A- 114-115 , RIICO Indistrial Area , Phase- I , Bhiwadi , Distt .Alwar-301 019, Rajasthan

2112:2003 Hallmarking of Silver Jewellery

M/ s . Chaplot Jewllers , 1st Floor , Dwarkesh Market, Bus Stand , Rajsamand , Distt . Kankroli - 313 324, Rajasthan

13801:1993 Chequered Cement Concrete Tiles

M/s. Swastik Tiles , F- 660-661 A, North Extension , Matsya Industrial Ares , Alwar, Rajasthan

1417:1999 Hallmarking ofGold Jewellery

M/s . New Ambica Jewellers Opp. Lunkaro Ki Pole , Bheru Bazar , Balotra, Distt . Barmer-344022, Rajasthan

1237:1980 Cement Concrete Flooring Tiles

M/ s. Swastik Tiles , F- 660-661 A, North Extension Matsya Industrial Area Alwar , Rajasthan

7098 (Part 1): 1988 XLPE Insulated PVC Cables

M/s . Furcon Engineers Corporation , F-383 , Road No. 09- F, Vishwa Karma IndustrialArea, Jaipur-302013 , Rajasthan 7461 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

(1) (2)

(3)

(5)

(4)

13. 8850794

10-08-2007

14151 (Part2) : 1999 QCPE Pipes

M/s. Jitendra Industries , F-207 , Mandia Road , Near DIC Office, Pali-Marwar, Distt. Pali-306401 , Rajasthan

09-08-2007

14. 8850592

1554 (Part 1) : 1988 PVC Insulated ( HD) Cables

M/ s . Ishwar Metal Industries , F- 79 B , Road No. 6 , V.K. I. Area, Jaipur-302013 , Rajasthan

15. 8850491

09-08-2007

14255:1995 Aerial Bunched Cables

M/s . Ishwar Metal Industries , F-79 B , Road No. 6 , V.K. I. Area , Jaipur-302013 , Rajasthan

16. 8850693

09-08-2007

7098 (Part 1) : 1988 XLPE Insulated PVC Cables

M/ s . Ishwar Metal Industries , F- 79 B , Road No. 6 , V.K. I. Area, Jaipur-302013, Rajasthan

17. 8851796

16-08-2007

398 (Part 2) : 1996 ACSR

M/s . Shree Agrasen Industries , F- 293 (A) , Road No. 14, V.K. I. Area, Jaipur -302013, Rajasthan

18. 8852394

16-08-2007

14543:2004 Packaged Drinking Water

M/s . Vaishnav Packaged Drinking , Water, P. Nos . 13 & 14 , Mandalda , Distt. Chittorgarh , Rajasthan

19. 8852596

13-08-2007

7098 (Part 1) : 1988 XLPE Insulated PVC Cables

M/s . Power Cables Industries , G-1/801, Sitapura Industrial Area , Jaipur-302022, Rajasthan

17-08-2007

20. 8852701

8112: 1989 43 Grade OPC

M/s . Siddha Cements Pvt . Ltd. , F-55, 56 , 57, G-101, 102, 103 , RIICO Industrial Area , Behror, Distt. Alwar , Rajasthan 7462

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

[PART II-SEC. 3( ii) ] (1) (2)

(3)

(5)

(4)

21. 8852697

17-08-2007

8112:1989 43Grade OPC

M/ s . Sailesh Cement Udhyog Pvt . Ltd. A -21 B , RIICO Industrial Area Behror Distt. Alwar- 301 701 Rajasthan

22. 8853093

21-08-2007

8794:1988 CID Joints

M/ s. Santosh Udyog F- 727 , Road No. 9 -F-3 V.K. I. Area Jaipur-302013 Rajasthan

23. 8852903

17-08-2007

9537 (Part 3 ): 1983 Rigid Plain Conduits for Insulating Materials

M/s . D.S. Industries F- 424 ( A) , Marodhar Indistrial Area Phase - II Basni Jodhpur- 342003 Rajasthan

24. 8853396

21-08-2007

694:1990

PVC Insulated Cables

M/ s . Jaipur Wires & Cables G-509B , Road, No. 9A V.K.I. Area , Jaipur-302013 Rajasthan

25. 8853602

22-08-2007

1239 (Part 1) : 2004 Mild Steel Tubes

M/ s . Navratan Pipe & Profile Ltd. SP- 6 , RIICO Industrial Area Khushkhera Alwar Rajasthan

26. 8854196

22-08-2007

14255:1995 Aerial Bunched Cables

M/s . Suryansh Electrical Industries F- 255A , Road No. 13 V.K.I. Area , Jaipur-302013 Rajasthan

27. 8854297

22-08-2007

14543:2004 Packaged Drinking Water

M/s. Jayanti Cold Storage Rajgarh Road VillageDadar Distt. Alwar- 301 001 Rajasthan

28. 8846504

26-07-2007

1417:1999 Hallmarking ofGold Jewellery

M/s . Aditya Associated Agencies C-5 Lalkothi Shopping Centre Tonk Road Jaipur- 302015 Rajasthan

29. 8846605

26-07-2007

2112 : 2003 Hallmarking of Silver Jewllery

M/ s. Aditiya Associated Agencies C-5 Lalkothi Shopping Centre , Tonk Road Jaipur- 302015 Rajasthan

[No. CMD/ 13 : 11 ]

A. K. TALWAR , Dy . Director General (Marks ) [ भाग II-खण्ड 3( ii) ]

7463

भारत का राजपत्र : सितम्बर 22, 2007 /भाद्र 31 , 1929

नई दिल्ली, 14 सितम्बर , 2007

का.आ. 2687.- भारतीय मानक ब्यूरो ( प्रमाणन ) विनियम 1988 के विनियम ( 5 ) के उपविनियम ( 6 ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि निम्न विवरण वाले लाइसेंसों को उनके आगे दर्शायी गई तारीख से रद्द/स्थगित कर दिया गया है : -

लाईसेंसधारी का नाम क्रम सं.

व पता:

संख्या

लाइसेंस सीएम/एल-

(2)

(3)

(1)

1

7736892

श्री कृष्णा इंटरप्राइजेज

डब्ल्यू-17 , एमआइडीसी परभणी-431401 अनुसूची

लाइसेंस के अंतर्गत

रद्द/स्थगित करने की तिथि वस्तु/प्रक्रम सम्बद्ध भारतीय मानक का शीर्षक

(4)

(5)

2-8-2007

भामा 14543 :2004 पैकेजबंद पेयजल ( पैकेजबंद प्राकृतिक मिनरल जल के अलावा)

[संख्या सीएमडी/ 13 : 13 ]

ए. के. तलवार , उप - महानिदेशक ( मुहर)

New Delhi , the 14th September , 2007

S.O. 2687.- In pursuance of sub - regulation (6) of the regulation 5 of the Bureau of Indian Standards (Certifica- tion) Regulations 1988, of the Bureau of Indian Standards , hereby notifies that the licences particulars of which are given below have been cancelled with effect from the date indicated against each .

S. No. Licence No.

Name and Address of the Licensee

(1) (2)

(3)

1

7736892

Shri Krishna Enterprises W- 17 , MIDC Parbhani 431401

SCHEDULE

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

(5)

(4)

2-8-2007

IS14543 :2004

Packaged drinking water (Other than packaged natural mineral water)

[No. CMD/13 : 13 ] A. K. TALWAR, Dy . Director General (Marks)

पेट्रोलियम और प्राकृतिक गैस मंत्रालय

नई दिल्ली , 12 सितम्बर , 2007

का.आ. 2688.- केन्द्रीय सरकार ने पेट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 (1962का 50 ) की धारा 3 की उप- धारा ( 1 ) के अधीन भारत सरकार के पेट्रोलियम एवं प्राकृतिक गैस मंत्रालय की अधिसूचना सं. का.आ. 5019 तारीख 28 दिसम्बर 2006 द्वारा पाइपलाइन बिछाने के प्रयोजन के लिए उस अधसूिचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में उपयोग के अधिकार का अर्जन करने के अपने आशय की घोषणा की थी;

और सक्षम अधिकारी ने उक्त अधिनियम की धारा 6 की उप - धारा ( 1 ) के अधीन सरकार को अपनी रिपोर्ट दे दी है ;

और केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात इस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में उपयोग के अधिकार का अर्जन करने का विनिश्चय किया है ;

अतः अब , केन्द्रीय सरकार अधिनियम की धारा 6 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्ति का प्रयोग करते हुए घोषणा करती है कि पाइपलाइन बिछाने के प्रयोजन के लिए इस अधिसूचना में संलग्न अनुसूची में विनिर्दिष्ट उक्त भूमि में उपयोग के अधिकार का अर्जन किया जाता है ।

और केन्द्रीय सरकार उस धारा की उप - धारा ( 4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए निर्देश देती है कि उक्त भूमि में उपयोग का अधिकार उस घोषणा के प्रकाशन की तारीख से केन्द्रीय सरकार में निहित होने के बजाय , सभी विल्लंगमों से मुक्त, असम गैस कम्पनी लि. में होगा । 7464

[PART II-SEC . 3 (ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

अनुसूची जिला : गोलाघाट

मौजा

सर्कल

गांव का नाम

पट्टा नं.

क्रम नं.

(1) (2)

(3)

(4)

(5) 1.

सरकार लेटेकु छापरी

खुमटाइ

खुमटाइ

गांव

एकसना पन्ना

राज्य : असम

क्षेत्रफल

दाग नं.

बीघा

कट्टा लुसा

(8)

(6)

(7)

(9) 26

0

2

8 35

0

1

4 0

2

15 73

मियादी पट्टा नं. 1

0

1

19 143

मियादी पट्टा नं. 4

कुल:

2.

रंगमाटी

6 1

3

296

0

0

7

मियादी पट्टा नं. 51

खुमटाइ

3 298

0

0

मियादी पट्टा नं. 11

छेवनीगांव (भाग 1 )

मियादी पट्टा नं. 51 .

0

0

302

10

2

0

4 303

मियादी पट्टा नं. 105

सरकार 0

2

0

304

0

0

17 305

मियादी पट्टा नं. 31

0 320

0

1

मियादी पट्टा नं. 74

324

0

0

7

मियादी पट्टा नं 57

334

0

0

6

मियादी पट्टा नं. 57

335

0

8 0

मियादी पट्टा नं. 31

336

0

0

8

मियादी पट्टा नं. 9

0

0

332

9

मियादी पट्टा नं. 102

339

0

0

11

मियादी पट्टा नं. 131

0

0

8 340

मियादी पट्टा नं. 33

0

1

341

7

मियादी पट्टा नं. 75

0

342

0

3

मियादी पट्टा नं. 12

381

0

0

12

मियादी पट्टा नं. 77

सरकार

1

0

2 1014

0

1095

0

2

मियादी पट्टा नं. 57

सरकार

कुल:

सरकार 3.

छापरीगाँव मोरंगी मारंगी

लेटेकु

सरकार

सरकार

कुल:

0

1137

0

19 2

2

5 1

5

1

4

6 5

0

1

0

13 18

1

5

4

3 [सं. ओ-12016/69/2006/ ओ एन जीडी- III ]

श्री प्रकाश , अवर सचिव

MINISTRY OF PETROLEUM AND NATURAL GAS

NewDelhi , the 12th September , 2007

S.O. 2688. Wheras by notification of the Government of India in the Ministry of Petroleum & Natural gas S. O. 5019 dated 28th December, 2006 under sub section 3 of Petroleum & Minerals Pipelines ( Acquisition of Right of User in Land) Act 1962, (50 of 1962) the Central Government declared its intention to acquire the right of user in land specified in the schedule appended to that notification for the purpose of laying pipeline .

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

[भाग II-खण्ड 3 ( ii ) ]

7465 And whereas the Competent Authority has under sub section 1 of Section 6 of the said Act , submitted report to the Government .

And further whereas the Central Government has after considering the said report, decided to acquired the right of user in lands specified in the Schedule appended to this notification.

Now, therefore , in exercise of the power conferred by sub section (1 ) of the Section (6) ofthe said Act , the Central Govt. hereby declares that the right of user in the said lands specified in the schedule appended to this notification hereby acquired for laying the pipeline;

And further in exercise of power conferred by sub section (4) of that section , the Central Govt . directs that right of user in the said lands shall instead of vesting in the Central Govt. vests on this date of publication of the declaration in the Assam Gas Company Limited free from encumbrances .

SCHEDULE

District-Golaghat

Mouza Patta No. Sl . No.

Nameof village

(5)

Circle (3)

(4)

(1) (2)

Waste land

Khumtai 1.. Leteku Chapari Khumtai

Annual Gaon

P. P. No. 1

P. P. No. 4

Total Area 2.

Chewni Gaon Khumtai

P. P. No. 51

Rangamati

P. P. No. 11 (1stPart)

P. P. No. 51 State-Assam

Remarks Dag No.

L (9)

Area K (8)

(6)

B (7)

8

2

26

0

4 0

1

35

2.

15 0

73

19 0

143

1

6

3

1

7

0

296

0

3

0

298

0

10

0

302

0

4

2

0

303

P. P. No. 105

Waste land

P. P. No. 31

P. P. No. 74

P. P. No. 57

P. P. No. 57

P. P. No. 31

P. P. No. 9

2

0

304

0

0

17 0

305

0

1

320

0

0

0

7 324

0

6 334

0

8

0

335

0

0

8 0

336

9

0

337

0

P. P. No. 102

0

11 0

339

P. P. No. 131

P. P. No. 33

P. P. No. 75

P. P. No. 12

P. P. No. 77

Waste land

P. P. No. 57

Waste land

TotalArea- 3.

Marangi Waste land

Waste land Leteku Chapari Marangi Gaon

Waste land

TotalArea- 725G1 /07-4

0

8 340

0

7

1

341

0

3

0

0

342

0

12 0

381

0

2

1

1014

2

0

1095

0

19 0

0

1137

2

5 2

4 5

1

6

1

5

0

13 0

1

18

4

3 5

[No. O- 12016/69/2 (X06/ON (JD - III ) SHRI PRAKASH , Under Secy.

7466

[PART II SEC. 3 ( ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

नई दिल्ली , 12 सितम्बर , 2007

का.आ. 2689.- केन्द्रीय सरकार ने पेट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 ( 1962 का 50 ) की धारा 3 की उप- धारा ( 1 ) के अधीन भारत सरकार के पेट्रोलियम एवं प्राकृतिक गैस मंत्रालय की अधिसूचना सं. का.आ. 5018 तारीख 28 दिसम्बर 2006 द्वारा पाइपलाइन बिछाने के प्रयोजन के लिए उस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में उपयोग के अधिकार का अर्जन करने के अपने आशय की घोषणा की थी;

और सक्षम अधिकारी ने उक्त अधिनियम की धारा. 6 की उप- धारा ( 1 ) के अधीन सरकार को अपनी रिपोर्ट दे दी है ;

और केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात इस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में उपयोग के अधिकार का अर्जन करने का विनिश्चय किया है;

अतः अब , केन्द्रीय सरकार अधिनियम की धारा 6 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्ति का प्रयोग करते हुए घोषणा करती है कि पाइपलाइन बिछाने के प्रयोजन के लिए इस अधिसूचना में संलग्न अनुसूची में विनिर्दिष्ट उक्त भूमि में उपयोग के अधिकार का अर्जन किया जाता है । और केन्द्रीय सरकार उस धारा की उप - धारा ( 4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए निर्देश देती है कि उक्त भूमि में उपयोग का अधिकार उस घोषणा के प्रकाशन की तारीख से केन्द्रीय सरकार में निहित होने के बजाय , सभी विल्लंगमों से मुक्त , असम गैस कम्पनी लि. में होगा ।

अनुसूची जिला : डिब्रूगढ़

गांव का नाम सर्कल

मौजा पट्टा नं.

क्रम नं.

(1) (2)

(3)

(5)

(4)

1.

टिपलींग

जालानी टी. इ. ग्रांट 263-283

टेंगाखाट (भाग -1 )

राज्य : असम

दाग नं.

बीघा

क्षेत्रफल कट्टा लुसा (7)

(8)

(9) (6)

0

0 25

1

26

2

0

11

263 एन.एल आर

263 एन.एल आर

कुल:

टेंगाखाट

2

11

1

2

4

220

4

मियादी पट्टा नं. 26

2. 1 नं बरपथार टिपलींग गांव

16

2

232

1

मियादी पट्टा नं. 6

9

0

233

1

मियादी पट्टा नं. 38

0

8

3

245

मियादी पट्टा नं. 61

सरकार

सरकार 246

0

2

10

5

0

297

0

2

0

18 298

मियादी पट्टा नं. 15

6 363

0

0

मियादी पट्टा नं. 1

0

19 366

2

मियादी पट्टा नं. 59

15 0

0

367

मियादी पट्टा नं. 72

0 0

368

1

मियादी पट्टा नं. 72

0

369

0

16

मियादी पट्टा नं. 122

सरकार

0

5 370

0

8 414

1

1

मियादी पट्टा नं. 19

कुल:

3. 1 नं नवहोलिया गांव टेंगाखाट टिपलींग

3

9

19 0

0

16 2

मियादी पट्टा नं. 8

4

2 0

8

मियादी पट्टा नं. 13

सरकार 10

0

15 0

0

1

15 11

मियादी पट्टा नं. 8

7 0

1

12

मियादी पट्टा नं. 47

8 13

0

1

मियादी पट्टा नं. 61

14

0

0

3..

मियादी पट्टा नं. 120

0

2

17 15

मियादी पट्टा नं. 60

7467 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

(2)

(3)

(5)

(1)

(4)

(7)

(8)

(6)

(9)

0

3.1

टिपलींग

3

17

18 नं नवहोलिया गांव टेंगाखाट

मियादी पट्टा नं. 97

21

0

3

5

मियादी पट्टा नं. 42

23

0

1

4

मियादी पट्टा नं. 43

24

0

0

15

मियादी पट्टा नं. 42

0

19

25

1

मियादी पट्टा नं. 5

सरकार

0

0

7

26

27

13

0

2

मियादी पट्टा नं. 11

32

0

2

3

मियादी पट्टा नं. 19

33

0

2

17

मियादी पट्टा नं. 52

36

2

0

2

मियादी पट्टा नं. 36

37

0

1

3

मियादी पट्टा नं. 25

0

40

1

15

मियादी पट्टा नं. 1

0

4

14

41

मियादी पट्टा नं. 69

0

49

3

0

मियादी पट्टा नं. 130

4

4

18

कुल:

4.

टिपलींग

टेंगाखाट

सरकार

12

0

0

10 हुकुता गांव

36

0

3

11

मियादी पट्टा नं. 28

38

0

1

18

मियादी पट्टा नं. 47

45

0

0

मियादी पट्टा नं. 1

17

46

0

1

11

मियादी पट्टा नं. 100

सरकार

0

61

1

2

62

3

0

2

मियादी पट्टा नं. 2

71

0

1

9

मियादी पट्टा नं. 1

72

0

0

15

मियादी पट्टा नं. 50

73

0

2

7

मियादी पट्टा नं. 21

76

0

1

1

मियादी पट्टा नं. 62

0

77

2

3

मियादी पट्टा नं. 68

0

0

6

78

मियादी पट्टा नं. 62

262

0

4

15

मियादी पट्टा नं. 31

263

2

0

7

मियादी पट्टा नं. 64

265

0

0

16

मियादी पट्टा नं. 18

266

0

2

11

मियादी पट्टा नं. 5

2

0

267

11

मियादी पट्टा नं. 56

1

268

0

12

मियादी पट्टा नं. 76

269

0

0

18

मियादी पट्टा नं. 11

270

0

0

15

मियादी पट्टा नं. 60

0

271

1

14

मियादी पट्टा नं. 68

सरकार

272

0

0

8

324

0

0

8

मियादी पट्टा नं. 43

0

326

एकासना

1

18

327

0

2

0

मियादी पट्टा नं. 102

सरकार

328

0

3

9

95

329

एकासना

0

0

5 7468

[PART II -SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(2)

(3)

(4)

(5) (1)

4.

टेंगाखाट टिपलींग एकासना हुकुता गांव

(-जारी- ) एकासना

सरकार

सरकार

एकासना

सरकार

एकासना

एकासना

एकासना (7)

(8) (9) (6)

0

0

5 330

0

332

0

16 0

2

0 347

0

2

18 348

0

0

4 349

0

352

0

19

0 426

1

2

0 1

2

426

428

2

0

12 0

3

16 429

मियादी पट्टा नं. 89

432

0

2

16

मियादी पट्टा नं. 28

कुल:

टिपलींग

0

0

3 433

4

14

8 0

1

177

15

मियादी पट्टा नं. 1

5. ड-हुकुता गांव टेंगाखाट

17 179

मियादी पट्टा नं. 34

0

16 180

चाह मियादी नं. 1

0

0

5 182

मियादी पट्टा नं. 34

9 0

0

183

मियादी पट्टा नं. 31

0

3

1 184

मियादी पट्टा नं. 29

0

4 0

215

मियादी पट्टा नं . 41

0

0

217

18

मियादी पट्टा नं. 32

8

1

218

0

मियादी पट्टा नं. 2

3

221

10 0

मियादी पट्टा नं. 2

सरकार 0

0

11 222

223

0

0

7

मियादी पट्टा नं. 30

कुल:

6. जालानी 15 नं टेंगाखाट टिपलींग मियादी पट्टा नं.

सरकार आवेदन भाग 1

सरकार

सरकार

मियादी पट्टा नं. 27 3

3

1 40

7

4

1

0

0

15 96

0

97

0

6

0

15 0

98

9 0

126

0

0

16 127

1

मियादी पट्टा नं. 1

7 0

144

0

मियादी पट्टा नं. 26

मियादी पट्टा नं. 34

मियादी पट्टा नं. 34

कुल :

7.

टिपलींग सरकार नलानी पधार टेंगाखाट

सरकार

एकासना

सरकार

सरकार

सरकार

सरकार 0

0

162

18

3

163

1

12

0

2 10

0

38

0

13

0

19 42

1

2

43

1

18

0

6 49

0

1

8 50

0

3 52

0

0

3

81

0

10 भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

[भाग II-खण्ड 3 ( ii ) ]

(5)

(4)

(2)

(3)

(1)

सरकार

टेंगाखाट

नलानी

7.

टिपलींग (जारी)

7469

(9) (7)

(8)

(6)

4

2

0

83

6

1

0

84

मियादी पट्टा नं. 1

सरकार

0

1

0

85

2

15 86

0

मियादी पट्टा नं. 1

एकासना

सरकार

सरकार

सरकार

सरकार

सरकार

कुल:

सरकार

टिपलींग

टेंगाखाट

8.

जालानी टी इ.

1897-98

3

12 1

90

4

0

0

91

0

15 0

146

17

1

0

164

3

0

170

1

9 2

1

176

4

2 11

0

4

19 46

17

0

47

0

मियादी पट्टा नं. 4

आवेदन नं. 81

5

1

48

1

मियादी पट्टा नं. 2

2

15 2

49

मियादी पट्टा नं. 2

सरकार

सरकार

कुल

टिपलींग

7 0

0

50

0

2 1

52

5 5

1

6

2

1

3

259 एन.एल आर

टेंगाखाट

9. जालानी टी. इ.

17

1

5

0

259 एन.एल आर

250 एन. एल आर ग्रांट

0

4 6

0

259 एन.एल. आर

0

3 0

13

259 एन.एल आर

2

4

1

14

259 एन.एल आर

सरकार

कुल:

सरकार

सरकार 10. डिहिंगकिनार नाहारकटिया जोयपुर बंदधारी

एकासना

एकासना

एकासना

एकासना

सरकार

सरकार

सरकार

एकासना

एकासना

एकासना

17

4

1

15

9 5

10 0

24

302

15 56

0

0

0

14 60

14

0

0

61

2

2 0

62

2

0

0

63

10

0

0

74

0

0

8 75

0

2 76

0

9

2

0

77

11 78

0

0

5 79

0

2

0

0

81

मियादी पट्टा नं. 3

सरकार

सरकार

सरकार

एकासना

एकासना

एकासना

सरकार

2

0

82

0

1

2

0

83

0

6

0

86

14 1

92

0

0

93

1

94

0000 1830

10 0

0

95 7470

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(1) (2)

(3)

(4)

(5) 10. डिहिंगकिनार

एकासना

जोयपुर

नाहारकटिया

नंदधारी

(-जारी; ) एकासना

सरकार

सरकार

[PART II SEC . 3( ii ) ]

(6)

(7)

(9)

(8)

96

0

13

3

97

0

3

17

98

0

1

16

0

99

0

2

0

101

4

2

मियादी पट्टा नं. 14

सरकार

सरकार

एकासना

सरकार

सरकार

कुल:

नाहारकटिया

सरकार 11. जोयपुर

हाथीगढ़ ब्लॉक

सरकार

एकासना

एकासना

एकासना

एकासना

एकासना 102

0

0

2

0

103

0

6

5 104

0

0

2

105

0

0

10

304

0

2

2

8

3

2

0

69

3

2

70

0

1

12

74

0

2

5

83

4

0

7

84

0

j

18

86

0

1

14

4

87

1

0

89

0

0

1

मियादी पट्टा नं. 9

कुल:

12.

नाहारकटिया जोयपुर

4

1

2

4

0

6

1

मियादी पट्टा नं. 92

टिप्लिंग बंदधारी

5

0

0

14

मियादी पट्टा नं. 92

6

0

0

मियादी पट्टा नं. 92

सरकार

सरकार

सरकार

10

7

0

1

17

8

0

0

11

0

9

0

18

13

0

4

16

मियादी पट्टा नं. 92

0

17

0

2

मियादी पट्टा नं. 122

19

0

9

1

मियादी पट्टा नं. 19

20

0

4

मियादी पट्टा नं. 92

13

22

0

0

8

मियादी पट्टा नं. 1

23

0

2

मियादी पट्टा नं. 27

एकासना

सरकार

एकासना

एकासना

सरकार

कुल:

11

24

0

1

10

0

25

4

5

26

0

0

17

27

0

0

8

267

0

4

1

5

2

9

[सं. ओ -12016/69/2006/ ओ एनजीडी- III ]

श्री प्रकाश , अवर सचिव

New Delhi , the 12th September , 2007

S.O. 2689. Whereas by notification of the Government of India in the Ministry of Petroleum & Natural gas S. O. 5018 dated 28th December , 2006 under sub- section 3 of Petroleum & Minerals Pipelines (Acquisition of Right ofUser inLand) Act 1962, (50 of 1962) the Central Government declared its intention to acquire the right of user in land specified in the schedule appended to that notification for the purpose of laying pipeline .

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 3 ( ii) ]

7471 Andwhereas the Competent Authority has under sub- section 1 of Section 6 of the said Act, submitted report to theGovernment .

And further whereas the Central Government has after considering the said report , decided to acquire the right of user in lands specified in the Schedule appended to this notification.

Now, therefore , in exercise of the power conferred by sub section (1 ) of the Section ( 6 ) of the said Act, the Central Government hereby declares that the right of user in the said lands specified in the schedule appended to this notification hereby acquired for laying the pipeline;

And further in exercise of power conferred by sub section (4) of that section , the Central Government directs that right user in the said lands shall instead of vesting in the Central Government vest on this date of publication of the declaration in Assam Gas Company Limited free from encumbrances .

SCHEDULE District: Dibrugarh

Circle

Mouza Patta No. Sl . No.

Name of Village

(5)

(4)

(3)

(2)

(1)

263 N.L.R. 1.

Jalani T.E.

Tipling

Tengakhat

263N.L.R.

Grant No. 263-282

Total Area:

P.P. No. 26 2.

Tipling 1No. Borpathar Tengakhat

P.P. No. 6 gaon

P.P. No. 38

P.P. No. 61

Waste land

Waste land

P.P. No. 15

P.P. No. I

P.P. No. 59

P.P. No. 72

P.P. No. 72

P.P. No. 122

Waste land

P.P. No. 19

TotalArea :

P.P. No. 8

P.P. No. 13 3. 1 No. Nawholiya Tengakhat Tipling gaon

Waste land

P.P. No. 8

P.P. No. 47

P.P. No. 61

State : Assam

Remarks

Area

K

L B

Dag No.

(8)

(9) (7)

(6)

0 0

1

25

0

11 2

26

2

11

1

4 2

4

220

16

2

1

232

0

9 1

233

8

3

0

245

10

2

0

246

5

0

0

297

2

18 0

298

6 0

0

363

19 0

2.

366

0

15 0

367

0 .0

1

368

0

0

16 369

0

5 0

370

8 1

1

414

3

19 9

0

2

0

16

2 0

4

8

15 0

0

10

15 0

11

1

7 12

1

0

8 13

0

1 .

3

0

0

14.

P.P. No. 120

P.P. No. 60

P.P. No. 97

P.P. No. 42

P.P. No. 43

P.P. No. 42

2

0

17 15

3

0

18 17

5

3

21

0

1

4 0

23

0

15 0

24 7472

[PART II SEC. 3 ( ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(1)

(2)

(3)

(4)

(5) 3.

P.P. No. 5 .

1 No.NawholidayTengakhat Tipling

(6)

(7)

(8) (9) 25

0

1

19 26

0

Waste land

gaon

P.P. No. 11 .

0

7

2

27

0

13 32

P.P. No. 19

P.P. No. 52

P.P. No. 36 0

2

3 33

0

2

17 36

0

2

2

P.P. No. 25

P.P. No. 1

P.P. No. 69

P.P. No. 130

TotalArea:

4.

Waste land Hukuta gaon Tengakhat Tipling

37

0

1

3 40

0

1

15 41

4

0

14 49

0

0

3

4

4

18 12

0

10

0

36

P.P. No. 28

P.P. No. 47

P.P. No. 1

P.P. No. 1000

Waste land

P.P. No. 2

P.P. No. 1

P.P. No. 50 .

P.P. No. 21

P.P. No. 62

P.P. No. 68

P.P. No. 62,

P.P. No. 31

P.P. No. 64

P.P. No. 18

P.P. No. 5

P.P. No. 56 0

3

11 38

1

0

18 45

0

0

17 46

0

1

11 61

0

1

2 62

0

3

2 71

0

1

9 72

0

0

15 73

0

2

7 76

0

1

1 77

0

2

3 78

0

0

6 262

4

0

15 263

0

2

7 265

0

0

16 266

0

2

11 267

0

2

11

P.P. No. 76

268

0

1

12

P.P. No. 11

P.P. No. 60 269

0

0

18 270

0

0

15

P.P. No. 68

271

0

1

14 0

Waste land

P.P. No. 43

Annual 272

0

8 324

0

0

8 326

0

1

18

P.P. No. 102

Waste land .

Annual 327

0

2

0 328

0

3

9 329

0

0

5

Annual

330

0

0

5

Annual

332

0

0

16

Waste land

347

0

2

0

Waste land

Annual

Waste land

Annual

Annual

P.P. No. 89

P.P. No. 28

Total Area :

348

0

2

18 0

349

0

4 352

0

0

19 426

1

-2

0 428

0

12 429

23

0

3

16 432

0

2

16 433

0

0

3 14

4

8 भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

[ भाग II-खण्ड 3 ( ii ) ]

(5)

(4)

(3)

(2)

(1)

P.P. No. 1 5.

Da-Hukuta Tengakhat Tipling

7473

(9) (7)

(8)

(6)

1

15 177

0

17 0

2

179

P.P. No. 34

gaon

T.P. No. 1

16

2

180

0

0

0

5 -182

P.P. No. 34

P.P. No. 31

0

9 183

0

3

0

1 184

P.P. No. 29

4

0

0

215

P.P. No. 41

0

0

18 217

P.P. No. 32

P.P. No. 2

P.P. No. 2

8

1

218

0

10

3

0

221

0

11 0

222

Waste land

0

7 223

0

P.P. No. 30

Total Area:

P.P. No. 6.

Jalani 15 No. Tengakhat Tipling

3

3

4

1

7

40

0

15 0

96

Waste land

Application

0

6 0

97

Waste land

1stPart

15 0

0

98

Waste land

9

0

126

0

P.P. No. 27

P.P. No. 1

1

16 0

127

7

0

0

144

P.P. No. 26

0

18 0

162

P.P. No. 34

12

3

1

163

P.P. No. 34

Total Area :

Waste land 7. Nalani Pather Tengakhat Tipling

2

0

10

13

0

0

38

19

0

42

1

Waste land

Annual

18

2

1

43

6 0

0

49

Waste land

0

8 1

50

Waste land

3

0

0

52

Waste land

10 0

3

81

Waste land

4

2

83

0

Waste land

P.P. No. 1

6

1

0

84

1

0 0

85

Waste land

P.P. No. 1

Annual

2

15 0

86

12

3

1

90

4

0

0

91

Waste land

15 0

0

146

Waste land

Waste land

17

1

0

164

3

0

1

170

Waste land

9

1

2

176

Waste land

TotalArea:

4

4

19 46

0

Waste land

8.

Jalani T.E. Tengakhat Tipling

P.P. No. 4 1897-98

P.P. No. 2 81 No. Application

P.P. No. 2

0

17 0

47

1

5 48

1

15

2

49

2

7

0

50

0

Waste land

Waste land

TotalArea:

3725G1/07-5

2

0

52

1 7474

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

(1) (2)

(3) (4)

(5) 9.

Jalani T.E.

259 No. N.L.R.

Tengakhat Tipling

259 No. N.L.R.

259 No. N.L.R. Grant

259 No. N.L.R.

259 No. N.L.R.

259 No. N.L.R.

Waste land

TotalArea :

Waste land 10. Dehingkinar Naharkatia Joypore

Banhdhari

Waste land

Annual

Annual

Annual

Annual

Waste land

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

(7)

(8) (9) 3

1

2

6 5

0

1

17 6

0

0

4 0

3 13

0

14

1

2

4

4

15

1

17 5

9

3

24

0

0

10 56

0

15 60

0

14 0

61

14 62

0

2 63

0

2 74

0

10

Waste land

Waste land

Annual

Annual

Annual

P.P. No. 3 75

0

8

20020000

76

0

2 77

0

2

9 78

0

1

11 79

0

5 0

81

0

2 0

82

0

2

Waste land

0

83

Waste land

Waste land

Annual 0

2

1 86

0

0

6 92

0

1

14

Annual

Annual

Waste land 0

93

0

8 1

94

3

0

95

0

0

10 0

Annual

Annual

Waste land

Waste land

P.P. No. 14 96

3

13 97

0

3

17 98

0

1

16 0

99

0

2 101

0

2

4

0

Waste land

Waste land

Annual.

Waste land

Waste land

TotalArea :

102

0

2

0

0

103

6 0

104

0

2 0

105

0

10 304

0

2

2

8

3

2

2

69

0

3

2

Waste land

11. Hatigarh Block Naharkatia Joypore

Waste land

Annual

Annual 70

1

0

12 0

74

2

5 83

0

4

7

0

1

84

Annual

Annual

Annual

18 86

1

0

14 87

0

1

4

0

89

0

1

P.P. No. 9

Total Area:

4

2 7475

भारत का राजपत्र सितम्बर 22, 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 3 ( ii) ]

(5)

(4)

(3)

(1)

P.P. No. 92

Joypore 12.

Naharkatia

Tipling

P.P. No. 92 Banhdhari

P.P. No. 92

Waste land

Waste land

Waste land

P.P. No. 92

(8) (9) (7)

(6)

6 0

1

4

0

14 0

5

0

10 6

0

1

0

7

0

0

8

0

0

9

0

4

13

0

0

17

P.P. No. 122

P.P. No. 19

P.P. No. 92

P.P. No. 1

P.P. No. 27

Annual

Waste land

Annual

Annual

Waste land

Total Area:

0

1

19

4

0

20

0

0

22

2

23

0

1

24

0

4

25

0

0

26

0

0

0

27

718629B8105184 13

1

0

267

9

2 .

5

[No. O -12016/69 /2006/ONGD - III ] SHRI PRAKASH , Under Secy .

नई दिल्ली, 12 सितम्बर , 2007

का.आ. 2690.- केन्द्रीय सरकार ने पेट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधकिार का अर्जन ) अधिनियम, 1962 (1962का 50 ) की धारा 3 की उप- धारा ( 1 ) के अधीन भारत सरकार के पेट्रोलियम एवं प्राकृतिक गैस मंत्रालय की अधिसूचना सं. का.आ. 5017 तारीख 28 दिसम्बर , 2006 द्वारा पाइपलाइन बिछाने के प्रयोजन के लिए उस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में उपयोग के अधिकर का अर्जन करने के अपने आशय की घोषणा की थी;

और सक्षम अधिकारी ने डक्त अधिनियम की धारा 6 की उप - धारा ( 1 ) के अधीन सरकार को अपनी रिपोर्ट दे दी है;

और केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात इस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में उपयोग के अधिकार का अर्जन करने का विनिश्चय किया है;

अतः अब , केन्द्रीय सरकार अधिनियम की धारा 6 की उप - धारा ( 1 ) द्वारा प्रदत्तशक्ति का प्रयोग करते हुए घोषणा करती है कि पाइपलाइन बिछाने के प्रयोजन के लिए इस अधिसूचना में संलग्न अनुसूची में विनिर्दिष्ट उक्त भूमि में उपयोग के अधिकार का अर्जन किया जाता है । और केन्द्रीय सरकार उस धारा की उप- धारा (4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए निर्देश देती है कि उक्त भूमि में उपयोग का अधिकार उस घोषणा के प्रकाशन की तारीख से केन्द्रीय सरकार में निहित होने के बजाय , सभी विल्लंगमों से मुक्त , असम गैस कम्पनी लि. में होगा ।

अनुसूची जोरहाट

जिला :

मौजा

सर्कल

पंट्टा नं.

गांव का नाम

क्रम नं.

(5)

(3)

(4)

(2)

(1)

चेतिया गांव टियोक लहिंग

1.

राज्य : असम

दाग नं.

बीघा

क्षेत्रफल कट्टा लुसा

(9) (7)

(8)

(6)

0

13 0

83

मियादी पट्टा नं. 86

2

10 0

88

मियादी पट्टा नं. 120

4

12 0

89

मियादी पट्टा नं. 120

0

0

2 90

मियादी पट्टा नं. 120

0

3 0

99

मियादी पट्टा नं. 209

2 0

2

100

मियादी पट्टा नं. 135

0

0

11 101

मियादी पट्टा नं. 30

4

1

102

0

मियादी पट्टा नं. 86

3

1

111

0

मियादी पट्टा नं. 102

0

15 112

0

मियादी पट्टा नं. 27

0

113

मियादी पट्टा नं. 120

सरकार

कुल:

537

10

0

1265

0

5 3 7476

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929 [PART II-SEC . 3 ( ii ) ] (3)

(7)

(1) (2)

(5)

(6)

(8) (9) (4)

2.

0

579

2

18

मियादी पट्टा नं. 122

चारीगांव

3

13

584

0

1 नं. बामुन गांव (भाग 1)

जोरहाट (पूर्व)

मियादी पट्टा नं. 212

643

0

1

10

मियादी पट्टा नं. 175

651

0

0

10

मियादी पट्टा नं. 437

0

652

0

10

मियादी पट्टा नं. 174

706

0

0

17

मियादी पट्टा नं. 249

711

0

2

13

मियादी पट्टा नं. 435

0

712

0

12

मियादी पट्टा नं. 435

713

0

0

5

मियादी पट्ट्टा नं. 76

766

0

8

0

मियादी पट्टा नं. 435

0

767

0

11

मियादी पट्टा नं. 582

768

0

7

1

मियादी पट्टा नं. 582

0

1

798

0

मियादी पट्टा नं. 529

0

0

799

मियादी पट्टा नं. 5

0

800

10

मियादी पट्टा नं. 249

801

0

10

मियादी पट्टा नं. 68

0

0

5

814

मियादी पट्टा नं. 561

0

5

815

मियादी पट्टा नं. 561

816

0

0

मियादी पट्टा नं. 561

0

0

15

817

मियादी पट्टा नं. 6

0

0

818

1

मियादी पट्टा नं. 6

819

0

0

15

मियादी पट्टा नं. 249

5

0

0

831

मियादी पट्टा नं. 367

0

0

4

832

मियादी पट्टा नं. 367

4

833

0

मियादी पट्टा नं. 555

4

0

877

1

मियादी पट्टा नं. 434

878

0

0

10

मियादीपट्टा नं. 364.

0

18

879.

0

मियादी पट्टा नं. 321

0

880

1

3

मियादी पट्टा नं. 484

0

0

5

881

मियादी पट्टा नं. 367

882

0

0

5

मियादी पट्टा नं. 322

0

0

883

Ю

मियादी पट्टा नं. 7

884

0

0

11

मियादी पट्टा नं. 554

0.

0

901

8

मियादी पट्टा नं. 322

0

0

902

4

मियादी पट्टा नं. 367

0

903

0

2

मियादी पट्टा नं. 484

0

909

5

0

मियादी पट्टा नं. 126

0

0

915

5

मियादी पट्टा नं. 266

0

0

15

927

मियादी पट्टा नं. 323

0

0

1

988

मियादी पट्टा नं. 498

0

4

989

1

मियादी पट्टा नं. 371

0

1000

0

5

मियादी पट्टा नं. 629

1001

0

1

12

मियादी पट्टा नं. 7

0

3

मियादी पट्टा नं. 530

1002

6 7477 [ भाग II-खण्ड 3( ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

(2)

(3)

(4)

(6)

(7)

(8) (1)

(5)

(9) 2..

0

2

1004

1 जोरहाट चारीगांव मियादी पट्टा नं. 372

0

0

9

1007

(पूर्व)

1 नं. बामुन गांव (भाग 1 )

मियादी पट्टा नं. 530

0΄

0

1008

17

मियादी पट्टा नं. 441

1009

0

7

1

मियादी पट्टा नं. 309

0

0

14

1054

मियादी पट्टा नं. 440

0

5

0

1103

मियादी पट्टा नं.442

5-

0

1104

0

मियादी पट्टा नं. 185

0

9

1105

0

मियादी पट्टा नं. 602

100

0

0

4

मियादी पट्टा नं. 572

1121

1

0

0

मियादी पट्टा नं. 375

0

13

1122

0

मियादी पट्टा नं. 602

0

0

4

1123

मियादी पट्टा नं. 203

0

0

1124

11

मियादी पट्टा नं. 328

562

10

1

0

मियादी पट्टा नं. 31

0

986

0

11

मियादी पट्टा नं. 69

0

0

11

1010

मियादी पट्टा नं. 327

8

1057

0

0

मियादी पट्टा नं. 329

1056

0

0

11

मियादी पट्टा नं. 530

1055

0

0

11

मियादी पट्टा नं. 441

0

0

555

3

मियादी पट्टा नं. 252

556

0

0

5

मियादी पट्टा नं. 141

558

8

1

0

मियादी पट्टा नं. 143

559

0

1

6

मियादी पट्टा नं. 335

4

10

3

कुल:

1159

0

1

2 3.

चारीगांव मियादी पट्टा नं. 351

0

0

1176

11

मियादी पट्टा नं. 424

1 नं. बामुन गांव जोरहाट (भाग 2) (पूर्व)

1177

0

0

15

मियादी पट्टा नं. 411 '

0

15

1255

0

मियादी पट्टा नं. 351

1256

0

0

13

मियादी पट्टा नं. 427

0

1258

0

5

मियादी पट्टा नं. 375

1281

0

1

6

मियादी पट्टा नं. 246

0

0

1282

17

मियादी पट्टा नं. 600

:

0

11

1283

0

मियादी पट्टा नं. 414

1349

0

17

0

मियादी पट्टा नं. 289

0

0

12

1350

मियादी पट्टा नं. 427

0

2

5

1351

मियादी पट्टा नं. 576

0

2199

0

9

मियादी पट्टा नं. 559

0

18

2

कुल:

7478

[PART II-SEC. 3 ( ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

(7)

(8)

(9) (2)

(1)

(3)

(5)

(6)

(4)

0

5 4.

25

0

चारीगांव

कलाखोवा गांव जोरहाट

मियादी पट्टा नं. 78

2

19

658

0

मियादी पट्टा नं. 503

(पूर्व)

0

1

4

681

मियादी पट्टा नं. 265

3

685

13

0

मियादी पट्टा नं. 265

0

686

0

2

मियादी पट्टा नं. 160

0

-0

11

687

मियादी पट्टा नं. 503

0

0

689

9

मियादी पट्टा नं. 245

0

0

690

18

मियादी पट्टा नं. 484

3

0

0

694

मियादी पट्टा नं. 484

0

2

695

1

मियादी पट्टा नं. 337

5

697

0

0

मियादी पट्टा नं. 561

0

0

11

811

मियादी पट्टा नं. 241

820

1

13

0

मियादी पट्टा नं. 370

2

12

826

0

मियादी पट्टा नं. 484

829

4

0

1

मियादी पट्टा नं. 484

830

2

0

12

मियादी पट्टा नं. 562

0

831

0

11

मियादी पट्टा नं. 299

832

0

2

0

मियादी पट्टा नं. 19

0

5

835

0

मियादी पट्टा नं. 377

0

836

0

9

मियादी पट्टा नं. 378

854

0

8

0

मियादी पट्टा नं. 321

855

0

2

15

मियादी पट्टा नं. 24

856

0

0

7

मियादी पट्टा नं. 269

857

5

0

0

मियादी पट्टा नं. 487

858

1

9

0

मियादी पट्टा नं. 328

0

0

861

9

मियादी पट्टा नं. 299

862

11

0

0

मियादी पट्टा नं. 262

0

13

863

0

मियादी पट्टा नं. 150

864

0

2

0

मियादी पट्टा नं. 367

866

0

2

0

मियादी पट्टा नं . 369

867

0

0

17

मियादी पट्टा नं. 477

868

2

15

0

मियादी पट्टा नं. 367

0

2

869

1

मियादी पट्टा नं. 470.

0

898

1

4

मियादी पट्टा नं. 339

3

1020

0

10

मियादी पट्टा नं. 433

0

0

5

1021

मियादी पट्टा नं. 471

2

1059

0

मियादी पट्टा नं. 1

2

0

0

1174

मियादी पट्टा नं. 1

2

1219

0

17

मियादी पट्टा नं. 1

0

0

3

1319

मियादी पट्टा नं. 1

1

14

1320

0

मियादी पट्टा नं. 1

0

0

1321

1

मियादी पट्टा नं. 1

0

1322

0

2

मियादी पट्टा नं. 1

6

1323

0

1

मियादी पट्टा नं. 1

7479

भारत का राजपत्र सितम्बर 22 , 2007/भाद्र 31 , 1929

[ भाग II-खण्ड 3( ii ) ]

(7)

(8) (3)

(4)

(5)

(6)

(9) (1) (2)

1325

0

1

0 4.

कलाखोवा गांव जोरहाट चारीगांव ' मियादी पट्टा नं. 1

0

0

16

1330

सरकार

पूर्व

1

0

6

1338

मियादी पट्टा नं. 73

0

13

1353

0

मियादी पट्टा नं. 203

0

2

1354

0

मियादी पट्टा नं. 412

0

5

0

1355

मियादी पट्टा नं. 203

0

2

0

1357

मियादी पट्टा नं. 203

2

1358

0

1

मियादी पट्टा नं. 478

0

6

1398

1

मियादी पट्टा नं. 518

1442

1

4:

0

मियादी पट्टा नं. 233

0

9

1445

1

मियादी पट्टा नं. 203

0

3

10

1446

मियादी पट्टा नं. 203

0

15

0

1447

मियादी पट्टा नं. 236

0

0

4

1448

मियादी पट्टा नं. 364

1449

0

1

8

मियादी पट्टा नं. 393

5

0

1491

0

मियादी पट्टा नं. 15

0

1492

0

4

मियादी पट्टा नं. 177

0

0

7

1494

मियादी पट्टा नं. 474

18

0

1

1498

मियादी पट्टा नं. 516

0

1707

0

8

मियादी पट्टा नं. 222

0

0

15

1708

मियादी पट्टा नं. 469

2

1709

0

15

मियादी पट्टा नं. 10

0

12

1711

0

मियादी पट्टा नं. 279

1713

0

0

7

मियादी पट्टा नं. 222

1714

0

13

0

मियादी पट्टा नं. 200

2

1715

1

0

मियादी पट्टा नं. 428

4

1716

0

1

मियादी पट्टा नं. 201

0

7

1725

0

सरकार

1832

0

1

11

मियादी पट्टा नं. 1

0.

0

3

1921

मियादी पट्टा नं. 22

16

4

0

कुल:

0

0

4

26

चेंगाली गांव

5.

जोरहाट ( पूर्व ) चारीगांव मियादी पट्टा नं. 105

8

1

27

0

मियादी पट्टा नं. 88

18

28

0

0

मियादी पट्टा नं. 283

0

0

10

29

मियादी पट्टा नं. 315

0

7

30

0

मियादी पट्टा नं. 455

0

31

0

15

मियादी पट्टा नं. 455

15

32

0

0

मियादी पट्टा नं. 105

33

0

7

0.

मियादी पट्टा नं. 454

5

34

0

0

मियादी पट्टा नं. 105

15

0

35

1

मियादी पट्टा नं. 463

0

1

0

89

मियादी पट्टा नं. 7

7480

[PART II-SEC. 3 ( ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

(5) (1) (2)

(3)

(4)

5.

चेंगाली गांव जोरहाट ( पूर्व ) चारीगांव

(8)

(6)

(7)

(9) 0

1

17 98

मियादी पट्टा नं. 90

1

13 99

0

मियादी पट्टा नं.443

8 0

1

100

मियादी पट्टा नं. 105

0

1

5 101.

मियादी पट्टा नं.460

0

0

5 103

मियादी पट्टा नं. 463

1

0

2 104

मियांदी पट्टा नं. 349

0

0

105

5

मियादी पट्टा नं. 193

0

0

.171

10

मियादी पट्टा नं. 526

0

17 0

172

मियादी पट्टा 422

10 173

0

1

मियादी पट्टा नं. 530

174

0

1

13

मियादी पट्टा नं. 352

कुल:

0

4

9 [सं. ओ -12016/69/2006/ओ एन जी डी- III ]

श्री प्रकाश , अवर सचिव

NewDelhi , the 12th September , 2007

S.O. 2690.-Whereas by notification of the Government of Iridia in the Ministry of Petroleum & Natural gas S. O. 5017 dated 28th December , 2006 under sub section 3 of Petroleum & Minerals Pipelines ( Acquisition of Right ofUser inLand) Act 1962 , (50 of 1962) the Central Government declared its intention to acquire the right of user in land specified in the schedule appended to that notification for the purpose of laying pipeline .

And whereas the Competent Authority has under sub section 1 of Section 6 of the said Act , submitted report to the Government .

And further whereas the Central Government has after considering the said report , decided to acquire the right of user in lands specified in the Schedule appended to this notification .

Now, therefore, in exercise of the power conferred by sub section ( 1 ) of the Section (6 ) of the said Act, the Central Govt. hereby declares that the right of user in the said lands specified in the schedule appended to this notification hereby acquired for laying the pipeline ;

And further in exercise of power conferred by sub section (4) of that section , the central Govt . directs that right user in the said lands shall instead of vesting in the Central Govt . vests on this date of publication of the declaration in Assam Gas Company Limited free from encumbrances .

SCHEDULE District : Jorhat

Mouza

Circle

Patta No. Sl. No.

Nameof Village

(5) (2)

(3)

(4)

(1)

State : Assam

Remark

L Dag No.

B

Area K

(7)

(8)

(6)

(9) 83

0

0

13

P. P. No. 86

Teok

1.

Lahing

Chetiagaon

P. P. No. 120 0

2

10 88

0

89

4

12

P. P. No. 120

0

2 90

0

P. P. No. 120

99

0

0

3

P. P. No. 209

100

0

2

P. P. No. 135

2

101

0

0

11

P. P. No. 30

P. P. No. 86

P. P. No. 102 0

1

102

0

1

111

0

112

0

P. P. No. 27

P. P. No. 120

Waste land

Total Area:

113

0

1

0

1265

0

0

3

1435375 7481

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 3 ( ii) ]

(7)

(9) (3)

(6)

(8) (1) (2)

(4)

(5)

0

2

18

579

2.

1No. Bamun

Charigaon P.P. No. 122

13

3

584

0

P. P. No. 212

gaon ( 1st Part)

Jorhat (East)

0

1

10

643

P. P. No. 175

0

651

0

10

P. P. No. 437

652

0

0

10

P. P. No. 174

17

706

0

0

P. P. No. 249

13

2

711

0

P. P. No. 435

0

712

0

12

P. P. No. 435

713

0

0

5

P. P. No. 76

766

8.

0

0

P. P. No. 435

767

0

0

11

P. P. No. 582

768

0

1

7

P. P. No. 582

0

0

1

798

P. P. No. 529

0

1

0

799

P. P. No. 5

0

0

800

P. P. No. 249

0

801

0

P. P. No. 68

10105

814

0

0

P. P. No. 561

1

0

815

5

P. P. No. 561

1

816

0

P. P. No. 561

0

817

0

P. P. No. 6

818

1

0

P. P. No. 6

819

0

0

P. P. No. 249

0

831

0

P. P. No. 367

832

0

P. P. No. 367

0

0

833

P. P. No. 555

1

0

877

P. P. No. 434

0

0

878

P. P. No. 364

0

879

P. P. No. 321

3 0505544410182

1

0

880

P. P. No. 484

0

5

0

881

P. P. No. 367

0

5.

882

0

P. P. No. 322

10

0

883

0

P. P. No. 7

0

0

11

884

P. P. No. 554

0

0

901

8

P. P. No. 322

4

0

902

0

P. P. No. 367

2

903

0

0

P. P. No. 484

0

5

909

0

P. P. No. 126

5

0

915

P. P. No. 266

15

0

927

P. P. No. 323

0

0

988

P. P. No. 498

0011

0

989

P. P. No. 371

0

0

1000

P. P. No. 629

1

1001

0

P. P. No. 7

3

1002

0

P. P. No. 530

0

1

1004

P. P. No. 372

0

1007

0

P. P. No. 530

0

0

1008

P. P. No. 441

1009

0

P. P. No. 309

0

0

1054

P. P. No.440

0

0

1103

P. P. No. 442

45262917453

0

0

P. P. No. 185

1104

3725G1/07-6 7482

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(5)

(7)

(8)

(9) (1)

(3)

(4)

(6)

(2)

0

1105

2.

0

9 INo. Bamun

Charigaon P.P. No. 602

1120

0

0

4

P.P. No. 572

(East ) Jorhat

Gaon ( 1st Part )

0

1121

0

1

P.P. No. 375

0

13

1122

0

P.P. No. 602

0

0

4

1123

P.P. No. 203

0

0

11

1124

P. P. No. 328

562

1

0

10

P.P. No. 31

986

0

0

11

P.P. No. 69

1010

0

0

11

P. P. No. 327

8

0

0

1057

P.P. No. 329

0

1056

0

P.P. No. 530

11

1055

0

0

11

P.P. No. 441

0

3

555

0

P. P. No. 252

556

5

0

0

P.P. No. 141

8

0

558

1

P.P. No. 143

0

6

1

559

P.P. No. 335

4

10

3

TotalArea:

1

0

2

1159

3.

1 No. Bamum Jorhat

Charigaon P.P. No. 351

0

0

1176

11

P. P. No. 424

Gaon(2nd Part) (East)

0

0

15

1177

P. P. No. 411

0

15

0

1255

P.P. No. 351

1256

0

0

13

P.P. No. 427

5

0

P.P. No. 375

1258

0

6

1

0

1281

P. P. No. 246

1282

0

17

0

P. P. No. 600

0

0

11

1283

P. P. No. 414

17

0

0

1349

P. P. No. 289

1350

2

12

0

P.P. No. 427

0

2

5

P.P. No.576

1351

0

9

P. P. No. 559

2199

0

2

0

18

TotalArea

0

5

0

4.

25

Kalakhowa

Charigaon P. P. No. 78

2

688

0

P.P. No. 503

Jorhat (East)

gaon

1

P. P. No. 265

681

0

194

0

3

685

13

P. P. No. 265

686

0

0

2

P. P. No. 160

11

0

687

0

P. P. No. 503

0

0

9

689

P. P. No. 245

0

0

18

690

P. P. No. 484

0

3

0

P. P. No. 484

694

0

695

1

2

P. P. No. 337

0

5

697

0

P. P. No. 561

811

0

0

11

P. P. No. 241

0

820

1

13.

P. P. No. 370

2

826

12

0

P. P. No. 484

1

829

0

4

P. P. No. 484

0

2

12

830

P. P. No. 562

831

0

0

11

P. P. No. 299

832

0

0

2

P. P. No. 19

0

0

P. P. No. 377

835

0

836

0

P. P. No. 378

598

0

0

854

P. P. No. 321

0

2

15

855

P. P. No. 24 7483 [भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

(9) (2)

(3)

(4)

(5)

(6)

(8)

(1)

(7)

0

856

0

7 4.

Kalakhowa

P. P. No. 269

Charigaon

0

5

P. P. No. 487

857

0

gaon

Jorhat (East)

1

858

0

9

P. P. No. 328

861

0

9

P. P. No. 299

0

862

0

0

P. P. No. 262

863

0

P. P. No. 150

0

864

0

P. P. No. 367

866

0

P. P. No. 369

0

0

0

P. P. No. 477

867

0

P. P. No.367

868

2

869

0

P. P. No. 470

1

0

1

1B221524 13 17

P. P. No. 339

898

3

10

P. P. No. 433

1020

0

0

1021

P. P. No. 471

0

0

P. P. No. 1

1059

0

1174

0

0

P. P. No. 1

0

2

P. P. No. 1

1219

1319

0

0

P. P. No. 1

0

P. P. No. 1

1320

1

1

P. P. No. 1

1321

0

1322

0

P. P. No. 1

0

1323

0

P. P. No. 1

1325

P. P. No. 1

0

1330

Waste land

0

1338

P. P. No. 73

1

0

P. P. No. 203

1353

1354

P. P. No. 412

0

1355

0

P. P. No. 203

1000000

0

P. P. No. 203

1357

0

P. P. No. 478

1

1358

1398

P. P. No. 518

0

1

P.P. No. 233

1

1442

0

0

1445

P. P. No. 203

1

3

1446

P. P. No. 203

0

1447

0

0

P. P. No. 236

0

1448

0

52213402601063252264905 17 4

P. P. No. 364

0

1449

P. P. No. 393

8

1

0

0

5

1491

P. P. No. 15

0

0

4

P. P. No. 177

1492

P. P. No. 474

1494

0

0

7

P. P. No. 516

1498

0

1

18

0

0

1707

P. P. No. 222

8

P. P. No. 469

1708

0

0

15

P. P. No. 10

1709

2

15

0

0

0

P. P. No. 279

1711

12

7

P. P. No. 222

0

0

1713

P. P. No. 200

1714

0

0

13.

1

0

P. P. No. 428

1715

0

1

P. P. No. 201

1716

1247

0

1725

0

Waste land

1832

0

1

11

P. P. No. 1

0

0

1921

P. P. No. 22

3

4

TotalArea

16

0

5.

26

0

P. P. No. 105

Charigaon

27

0

P. P. No. 88

1

Jorhat (East)

Chengali gaon

0488

0

28

0

P. P. No. 283

18

0

0

29

P. P. No. 315

10 7484

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

(5) (1) (2)

(3)

(4)

5.

Jorhat (East)

(6)

(7)

(8)

(9) 0

0

7 30

0

0

15 31

P.P. No.455

P.P. No. 455

Charigaon (Contd.)

Chengali- gaon

P. P. No. 105 0

32

0

15 33

0

0

7

P. P. No. 454

0

0

5 34

P. P. No. 105

35

P. P. No. 463

P. P. No. 7

P. P. No. 90 0

1

15 89

1

0 0

0

1

17 98

99

0

13

P. P. No. 443

0

100

1

8

P. P. No. 105

0

1

101

5

P. P. No. 460

5 103

0

0

P. P. No. 463 、

104

0

1

2

P.P. No. 349

0

5 0

105

P.P. No. 193

0

171

0

P.P. No. 526

P.P. No. 422

P. P. No. 530

10 0

0

17 172

Q

1

173

10 174

0

1

13

P. P. No. 352

Total Area :

4

ວ

9 [No. 0-120 : /2006/ONGD - III ] SHRI PAKASH , Under Secy.

नई दिल्ली , 12 सितम्बर , 2007

का.आ. 2691.- केन्द्रीय सरकार ने पेट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 ( 1962 का 50 ) की धारा 3 की उपधारा ( 1 ) के अधीन भारत सरकार के पेट्रोलियम एवं प्राकृतिक गैस मंत्रालय की अधिसूचना सं. का.आ. 5016 तारीख 28 दिसम्बर 2006 द्वारा पाइपलाइन बिछाने के प्रयोजन के लिए उस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में उपयोग के अधिकार का अर्जन करने के अपने आशय की घोषणा की थी;

और सक्षम अधिकारी ने उक्त अधिनियम की धारा 6 की उपधारा ( 1 ) के अधीन सरकार को अपनी रिपोर्ट दे दी है ;

और केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात इस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में उपयोग के अधिकार का अर्जन करने का विनिश्चय किया है;

अतः अब, केन्द्रीय सरकार अधिनियम की धारा 6 की उपधारा ( 1 ) द्वारा प्रदत्त शक्ति का प्रयोग करते हुए घोषणा करती है कि पाइपलाइन बिछाने के प्रयोजन के लिए इस अधिसूचना में संलग्न अनुसूची में विनिर्दिष्ट उक्त भूमि में उपयोग के अधिकार का अर्जन किया जाता है । उस घोषणा के प्रकाशन की तारीख से केन्द्रीय सरकार में निहित होने के बजाय , सभी विल्लंगमों से मुक्त, असम गैस कम्पनी लि. में होगा । और केन्द्रीय सरकार उस धारा की उपधारा ( 4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए निर्देश देती है कि उक्त भूमि में उपयोग का अधिकार

अनुसूची जिला: शिवसागर

गांव का नाम. सर्कल

मौजा पट्टा नं.

क्रम नं.

(3)

(5) (1) (2)

(4)

1.

मोहमारा खालोइघो घोरा

मोरान चांगमाई गांव

राज्य : असम

दाग नं.

बीघा

क्षेत्रफल कट्टा लुसा (6)

(7)

(8)

(9)

0

9 299

0

0

9 303

1

मियादी पट्टा नं. 101

मियादी पट्टा नं. 141

सरकार

4

0

304

0

1

0

5 305

मियादी पट्टा नं. 75

0

1

19 445

मियादी पट्टा नं. 45

0

1

446

13

मियादी पट्टा नं. 45

0

1

447

13

मियादी पट्टा नं. 45

0

14 448

0

मियादी पट्टा नं. 142

0

461

2

11

मियादी पट्टा नं. 59

0

1

11 611

मियादी पट्टा नं. 149

कुल:

2

8

3 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

(4)

(1) (2)

(3)

(5) 2.

सरकार

खालोइघो- सेसापुखरी हावी मोहमारा

गांव

घोरा

7485

(8)

(9) (6)

(7)

27

0

1

1

1

30

0

14

मियादी पट्टा नं. 51

3

9 35

0

मियादी पट्टा नं. 66

सरकार

सरकार 41

0

0

7 0

3

42

9

2

0

44

14

मियादी पट्टा नं. 31

0

45

0

7

मियादी पट्टा नं. 9

47

0

0

6

मियादी पट्टा नं. 9

48

0

0

7

मियादी पट्टा नं. 68

49

0

15 .

मियादी पट्टा नं. 68

50

2

0

3

मियादी पट्टा नं. 31

51

10 0

0

मियादी पट्टा नं. 31

एकासना पन्ना

0

57

0

10

7 0

59

0

मियादी पट्टा नं. 85

सरकार

सरकार 0

0

5 61

62

0

0

8 0

19 115

1

मियादी पट्टा नं. 5

सरकार

एकासना पन्ना 315

4

1

11 328

0

0

15

0

6 335

0

मियादी पट्टा नं. 43

0

338

13

0

मियादी पट्टा नं. 29

1

341

0

9

मियादी पट्टा नं. 21

0

344

7

0 .

मियादी पट्टा नं. 23

मियादी पट्टा नं.

0

346

0

8

0

348

0

16

मियादी पट्टा नं. 21

कुल:

3.

काकारामारा मोहमारा मोहमारा 9

1

16 10

0

8

1

मियादी पट्टा नं. 76

बगीचा भाग-2

12

0

0

19

मियादी पट्टा नं. 76

0

6 13

1

मियादी पट्टा नं. 76

0

14

0

9

मियादी पट्टा नं. 76

एकासना 39

0

0

15 0

44

0

9

मियादी पट्टा नं. 61

45

0

1

14

मियादी पट्टा नं. 25

0

46

0

12

मियादी पट्टा नं. 42

0

47

6

1

मियादी पट्टा नं. 25

सरकार

सरकार 0

6 93

0

6

0

395

0

0

409

0

10

मियादी पट्टा नं. 3

410

0

16

0

मियादी पट्टा नं. 25

कुल:

2

0

16 7486

[PART II-SEC. 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

(1)

(3)

(4)

(5) (2)

4.

मोहमारा

मोउतगांव

मियादी पट्टा नं. 142

खालोइघो- भाग-2

घोरा

(6)

(8)

(9) (7)

3

7 568

0

0 857

9

1

मियादी पट्टा नं. 30

0

2 588

0

मियादी पट्टा नं. 173

3

0

11 678

मियादी पट्टा नं.30

9

1

679

1

मियादी पट्टा नं. 173

मियादी पट्टा नं. 114

कुल:

5.

बोकाता

बोरबीलगांव डिमौ

0

1

2 680

0

11 4

463

0

3

14

मियादी पट्टा नं. 48

एकासना

एकासना

2

469

11 0

470

0

0

15 0

2

15 471

मियादी पट्टा नं. 48

एकासना

कुल:

हंसरा

477

0

0

4

4

1

19 0

6

16 68

मियादी पट्टा नं. 78

6. कुजीवली हावीगांव नाजिरा

1

1 69

0

मियादी पट्टा नं. 7

3 0

70

0

मियादी पट्टा नं. 61

सरकार

0

80

0

13

7 0

0

265

मियादी पट्टा नं. 61

0

0

15 268

मियादी पट्टा नं. 7

3 0

278

1

मियादी पट्टा नं. 82

0

5

0

279

मियादी पट्टा नं. 18

10 280

2

0

मियादी पट्टा नं. 18

15 0

0

281

मियादी पट्टा नं. 82

0

283

0

3

मियादी पट्टा नं. 82

कुल :

7. मोथायासिगा गांव नाजिरा

सरकार

जोकटोली

एकसना सरकार

सरकार

एकासना सरकार

1

2

11

2 0

944

1

1

0

17 946

947

0

1

1

1

0

8 955

2

0

0

956

मियादी पट्टा नं. 22

मियादी पट्टा नं. 250

0

15 0

1001

0

0

2 1332

मियादी पट्टा नं. 94

सरकार

सरकार

कुल :

8.

हंसरा

मोयामरागांव नाजिरा

0

5

0

1395

0 0

1

1491

2

1

12 42

0 0

1

मियादी पट्टा नं. 50

कुल:

1

0 0 7487

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 3 ( ii) ]

(9)

(7)

(8)

(6)

(4)

(5)

(1)

(3)

(2)

0

0

17

141

मियादी पट्टा नं. 77

9.

डिमोवालगांव शिवसागर बेटबाड़ी

0

2

142

0

मियादी पट्टा नं. 77

0

17

1

144

मियादी पट्टा नं. 5

0

0

1

145

मियादी पट्टा नं. 37

0

0

2

147

मियादी पट्टा नं. 32

4.

1

0

148

मियादी पट्टा नं. 32

0

17

0

150

मियादी पट्टा नं. 47

0

5

0

151

मियादी पट्टा नं. 47

0

6

0

152

मियादी पट्टा नं. 79

10

0

0

153

मियादी पट्टा नं. 119

4

0

1

154

मियादी पट्टा नं. 90

0

6

0

155

मियादी पट्टा नं. 79

0

2

0

156

मियादी पट्टा नं. 4

0

0

2

157

मियादी पट्टा नं. 90

0

0

19

159

मियादी पट्टा नं. 90

14

160

0

0

मियादी पट्टा नं. 90

0

2

0

161

मियादी पट्टा नं. 90

2

1

162

0

मियादी पट्टा नं. 90

4

0

1

163

मियादी पट्टा नं. 90

0

1

9

164

मियादी पट्टा नं. 11

13

0

0

215

मियादी पट्टा नं. 90

8

0

0

737

मियादी पट्टा नं. 90

0

3

5

कुल:

3

0

1

182

शिवसागर

मियादी पट्टा नं. 146.

10.

बेटबाड़ी

खेलुवा गाँव

2

11

0

962

मियादी पट्टा नं. 100.

2

8

0

965

सरकार

11

0

0

966

मियादी पट्टा नं. 180

9

0

0

968

मियादी पट्टां नं. 61

2

19

973

0

मियादी पट्टा नं. 100

1

17

0

974

मियादी पट्टा नं. 61

2

0

0

986

सरकार

6

0

1

987

सरकार

4

0

3

कुल:

0

10

0

20.

गोधूलिबजार मियादी पट्टा नं. 140

11. चावड़ांगगांव आमगुड़ी

11

0

0

21

मियादी पट्टा नं. 201

0

5

22

0

मियादी पट्टा नं. 50

0

15

0

30

मियादी पट्टा नं. 196

5

4

0

31

मियादी पट्टा नं. 140

1

0

1

32

मियादी पट्टा नं. 210

15

0

0

33

मियादी पट्टा नं. 140

10

0

0

36

मियादी पट्टा नं. 251

3

11

2

कुल :

7488

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(2)

(1)

(3)

(4)

(5) 12.

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

(7)

(8) (9) 72

0

2

13

मियादी पट्टा नं. 137

होलूगुरी

कुकुरासुआ गाँव आमगुड़ी

2

19 73

0

मियादी पट्टा नं. 86

1232

0

0

5

मियादी पट्टां नं. 70

कुल:

13. सेनसुआ गाँव आमगुड़ी

17 1

0

0

414

5

0

मियादी पट्टा नं. 284

होलुगुरी

416

0

13

1

मियादी पट्टा नं. 225

417

1

8 0

मियादी पट्टा नं. 222

0

0 418

1

मियादी पट्टा नं. 122

421

0

1

12

मियादी पट्टा नं. 68

4. 422

0

0

मियादी पट्टा नं. 284

4

424

0

5

मियादी पट्टा नं. 3

429

0

0

12

मियादी पट्टा नं. 64

0

1079

1

4

मियादी पट्टा नं. 2

4 1220

0

0

मियादी पट्टा नं. 344

9.

0

1222

0

9

मियादी पट्टा नं. 344

होलगुरी

सेनसुआ गाँव आमगुड़ी

0

5 1227

0

मियादी पट्टा नं. 344

कुल :

2

3

[सं. ओ -12016/69/2006/ओ एन जी डी- III ]

श्री प्रकाश , अवर सचिव

New Delhi , the 12th September , 2007

S.O. 2691. Whereas by notification of the Government of India in the Ministry of Petroleum & Natural Gas S. O. 5016 dated 28th December , 2006 under sub section 3 of Petroleum & Minerals Pipelines (Acquisition of Right ofUser in Land) Act 1962, (50 of 1962) the Central Government declared its intention to acquire the right of user in land specified in the schedule appended to that notification for the purpose of laying pipeline .

And whereas the Competent Authority has under sub Section 1 of Section 6 of the said Act , submitted report to the Government .

And further whereas the Central Government has after considering the said report , decided to acquire the right of user in lands specified in the Schedule appended to this notification .

Now, therefore, in exercise of the power conferred by sub section ( 1) of the Section (6) of the said Act , the Central Govt. hereby declares that the right of user in the said lands specified in the schedule appended to this notification hereby acquired for laying the pipeline;

And further in exercise of power conferred by sub section (4) of that section , the Central Govt . directs that right of user in the said lands shall instead of vesting in the Central Govt . vests on this date of publication of the declaration in Assam Gas Company Limited free from encumbrances .

SCHEDULE

District: Sivasagar

Sl . Nameof

Circle

Mouza Patta No. No. Village

(3)

(4)

(5) (1) (2)

1.

Khaloi- P.P. No. 101 Moran Changmai Mahmora

Gaon

ghogora P.P. No. 141

Waste land

P.P. No. 75

P.P. No. 45

P.P. No. 45

State :Assam

Remarks

K

Dag No.

Area B

L (6)

(7)

(8)

(9) 0

9

0

299

9 303

0

1

0

4 304

0

305

0

1

5 445

0

1

19 0

1

13 446 7489

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

[ भाग II-खण्ड 3 ( ii) ]

(8) (9)

(6)

(7)

(3)

(5)

(4)

(1) (2)

13

447

0

1

Khaloi- P.P. No. 45

Mahmora

1. Moran Changmai

0

0

448

14 Gaon

P.P. No. 142

ghogora

0

2

11

461

P.P. No. 59

1

11

611

0

P.P. No. 149

3

8

2

Total Area:

1

27

0

1 2.

Waste land

Mahmora Khaloi-

Sessapukhuri

0

14

1

30

ghogora P.P. No. 51

havi gaon

9

3

0

35

P.P. No. 66

0

0

7

41

Waste land

9

0

42

3

Waste land

2

14

44

0

P.P. No. 31

0

0

7

45

P.P. No. 9

6

0

0

47

P.P. No. 9

0

7

0

48

P.P. No. 68 ,

15

0

49

0

P.P. No. 68

3

2

0

50

P.P. No. 31

0

0

51

P.P. No. 31

100

0

0

57

Annual

0

7

59

0

P.P. No. 85

5

0

0

61

Waste land

62

0

0

8

Waste land

19

115

0

1

P.P. No. 5

4

1

11

315

Waste land

0

15

328

0

Annual

6

0

335

0

P.P. No. 43

13

338

0

0

P.P. No. 29

341

0

1.

9

P.P. No. 21

7

0

344

0

P.P. No. 23

0

8

0

346

P.P. No.

0

16

0

348

P.P. No. 21

16

1

9

TotalArea :

8

1

0

10

Mahmora

P.P. No. 76

3. Kakaramara

Mahmora

0

0

19

12

P.P. No. 76

BigachaP- II

6

0

1

13

P.P. No. 76

0

9

0

14

P.P. No. 76

15

0

39

0

Annual

0

9

0

44

P.P. No. 61

14

1

45

0

P.P. No. 25

12

0

46

0

P.P. No.42

6

1

0

47

P.P. No. 25

6

0

0

93

Waste land

6

0

0

395

Waste land

0

0

10

409

P.P. No.3

16

0

0

410

P.P. No. 25

16

2

0

TotalArea :

3725G1 /07-7 7490

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(1) (2)

(3)

(5)

(4)

P.P. No. 142

Mahmora Khaloi-

4. Mout gaon P- II

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

(7)

(8)

(9) 586

0

3

7

1

0 587

1

P.P. No. 30

ghogora

P.P. No. 173.

P.P. No. 30

0

2 588

0

678

0

3

11.

P.P. No. 173

679

1

1

9

P.P. No. 114

TotalArea :

Bokota P.P. No. 48

Demow

5. Borbil gaon

Annual

Annual 0

2 680

1

4

0

11 463

0

3

14 0

2

469

11 0

0

15 470

471

2

15 0

P.P. No. 48

Annual

Total Area :

4

0

0

477

19 1

4

68

0

6

16

Hansara P.P. No. 78

6. Kujibali Havi gaon Nazira

P.P. No. 7

P.P. No. 61

Waste land

P.P. No. 61

P.P. No.7 0

1

1 69

70

0

0

3 0

0

80

13 265

7 0

0

0

15 268

0

0

3 278

1

P.P. No. 82

P.P. No. 18

5 279

0

0

0

2

P.P. No. 18

280

10

0

15

P.P. No. 82

281

0

0

P.P. No. 82

Total Area :

Jouktoli Waste land 7. Mothayasiga gaon Nazira

Annual

Waste land

Annual

P.P. No. 22

P.P. No. 250

P.P. No. 94

Waste land

Waste land

TotalArea :

Hansara P.P. No.50

Nazira

8. Moiramora gaon

Total Area :

Batbari P.P. No. 77

Sivasagar

9. Demował gaon

P.P. No.77

P.P. No. 5

P.P. No. 37

P.P. No. 32

P.P. No. 32

0

283

3 2

1

11 0

1

2 944

0

946

1

17 0

947

1

1

955

0

1

8

2 956

0

0

0

0

1001

15

0

1332

0

0

1395

0

0

250 2

1

1491

2

1

12 42

0

0

0 0

1

141

0

17

0

0

0

142

2 0

1

17 144

145

0

1

0

147

0

148

0

1

0

150

0

P.P. No. 47

P.P. No. 47

17

0

151-

0

0

0

P.P. No. 79

P.P. No. 119

P.P. No. 90 152

0

0

153

154

0

10

155

0

0

024156046

P.P. No.79

[ भाग II-खण्ड 3 ( ii) ]

7491

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

(1)

(3)

(4)

(5)

(6)

(7)

(8) (9)

P.P. No.4

156

0

0

2 9. Demowal gaon Sivasagar Batbari

P.P.No.90

157

0

0

2

P.P. No. 90

159

0

0

19

P.P. No. 90

0

160

0

14

0

0

P.P. No. 90

161

2

P.P. No. 90

162

1

0

2

P.P. No. 90

164

0

1

9

P.P. No. 11

163

0

1

4

P.P. No. 90

215

0

0

13

0

P.P. No. 90

0

737

8

Total Area :

3

0

5

182

0

P.P. No. 146

1

10. Kheluwa gaon Sivasagar Batbari

31

P.P. No. 100

962

0

2

11

965

Waste land

0

2

8

P.P. No. 180

966

0

0

11

P.P. No. 61

968

0

9

0

P.P. No. 100

0

973

2

19

974

0

P.P. No. 61

1

17

986

Waste land

0

2

0

Waste land

987

0

1

6

TotalArea:

3

0

4

0

20

0

P.P. No. 140

10

Gadhuli-

11. Chawdang gaon Amguri

21

0

0

bazar

P.P. No. 201

11

5

P.P. No. 50

22

0

0

0

0

30

15

P.P. No. 196

0

4

P.P. No. 140

31

5

P.P. No. 210

1

0

32

1

0

P.P. No. 140

33

0

15

0

0

P.P. No. 251

36

10

2

3

TotalArea:

11

72

0

2

13

P.P. No. 137

12. Kukurasuwa gaon Amguri Hologuri

P.P. No. 86

73

0

2

19

5

P.P. No. 70

1232

0

0

0

17

1

Total Area :

0

414

0

5

P.P. No. 284

13. Sensuwa gaon Amguri Hologuri

P.P. No. 225

416

0

1

13

1

P.P. No. 222

417

0

8

418

0

1

0

P.P. No. 122

P.P. No. 68

0

1

421

12

P.P. No.284

422

4

0

0

4

P.P. No. 3

424

0

5

P.P. No. 64

429

0

12

0

0

P.P. No. 2

1079

1

44

0

P.P. No. 344

1220

0

4

0

1222

0

9

P.P. No. 344

1227

0

P.P. No. 344

0

5

2

3

Total Area :

1

[No. O- 12015/69/2006/ONGD - Ⅲ ]

SHRI PRAKASH, Under Secy.

-7492

[PART II SEC . 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

नई दिल्ली, 12 सितम्बर , 2007

का.आ. 2692.- केन्द्रीय सरकार ने पेट्रोलियम और खनिज पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 (1962का 50 ) की धारा 3 की उपधारा ( 1 ) के अधीन भारत सरकार के पेट्रोलियम एवं प्राकृतिक गैस मंत्रालय की अधिसूचना सं. का.आ. 619 तारीख 20 फरवरी 2007 द्वारा पाइपलाइन बिछाने के प्रयोजन के लिए उस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में उपयोग के अधिकार का अर्जन करने के अपने आशय की घोषणा की थी, और सक्षम अधिकारी ने उक्त अधिनियम की धारा 6 की उपधारा ( 1 ) के अधीन सरकार को अपनी रिपोर्ट दे दी है,

और केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात् इस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में उपयोग के अधिकार का अर्जन करने का विनिश्चय किया है ,

अतः अब , केन्द्रीय सरकार अधिनियम की धारा 6 की उपधारा ( 1 ) द्वारा प्रदत्त शक्ति का प्रयोग करते हुए घोषणा करती है कि पाइपलाइन बिछाने के प्रयोजन के लिए इस अधिसूचना में संलग्न अनुसूची में विनिर्दिष्ट उक्त भूमि में उपयोग के अधिकार का अर्जन किया जाता है ।

और केन्द्रीय सरकार उस धारा की उपधारा (4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए निर्देश देती है कि उक्त भूमि में उपयोग का अधिकार उस घोषणा के प्रकाशन की तारीख से केन्द्रीय सरकार में निहित होने के बजाय , सभी विल्लंगमों से मुक्त , असम गैस कम्पनी लि. में होगा ।

अनुसूची जिला जोरहाट

मोजा

सर्कल

पट्टा नं.

गाँव का नाम

क्रम सं

5 2

3

4

1

सरकार

मरियानी कटनी

1.

गाँव

एकसना खरिकटीया गाँव खण्ड-3

सरकार

सरकार

कुल 2. घरफलीया गाँव

मरियानी कटनी

राज्य: असम दाग नं.

बीघा

लुसा

क्षेत्रफल कट्टा

9

8

6

7

8 139

1

1

17

1

0

140

0

0

14 421

0

16 459

0

4

15

1

6

0

1

54

मियादी पट्टा नं. 36

गाँव

0 55

2

0

मियादी पट्टा नं. 11

13

0

1

57

मियादी पट्टा नं. 34

16 58

0

0

मियादी पट्टा नं. 10

16

0

0

59

मियादी पट्टा नं. 38

0

2 63

0

मियादी पट्टा नं. 10

2 64

0

मियादी पट्टा नं. 52

15

22

0

2

65

मियादी पट्टा नं. 49

2

0

0

66

मियादी पट्टा नं. 31

14

1

0

68

मियादी पट्टा नं. 46

18

0

109

0.

मियादी पट्टा नं. 35

0

1

0

110

मियादी पट्टा नं. 39

$

15

0

0

111

मियादी पट्टा नं. 12

13

0

1

112

मियादी पट्टा नं. 24

5

0

2

113

मियादी पट्टा नं. 9

0

2

0

114

मियादी पट्टा नं. 33

11

0

0

116

मियादी पट्टा नं. 9

11

0

2

117

मियादी पट्टा नं. 27

2

0

0

118

मियादी पट्टा नं. 44

5

0

0

119

मियादी पट्टा नं. 32

3

1

2

122

मियादी पट्टा नं. 40

16

1

0

123

मियादी पट्टा नं. 19

कुल :

15

6

4 7493 [भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

9

4

5

6

7

8 1

2

3

0

16

0 3. डेका गाँव

48

मरियानी कटनी मियादी पट्टा नं. 83

3

0

0

गाँव

50

मियादी पट्टा नं. 83

19

0

0

कुल:

0

0

सरकार

171

3

कटनी

4. डकलंगीया चाह बागिचा मरियानी

0

13

गाँव

174

0

एकसना-2

1

12

175

1

चाह म्यादी 1

8

2

सरकार

179

0

1

1

3

सरकार

191

15

274

2

0

एकसना-2

0

12

0

सरकार

291

4

4

5

कुल :

[सं. ओ-12016/69/2006-ओ एन जी डी- III ]

श्री प्रकाश , अवर सचिव

New Delhi , the 12th September, 2007

S.O. 2692. Whereas by notification of the Government of India in the Ministry of Petroleum & Natural Gas S.O. 619 , dated 20th February , 2007 under sub section 3 of Petroleum & Minerals Pipelines (Acquisition of Right of User in Land) Act , 1962, (50 of 1962) the Central Government declared its intention to acquire the right of user in land specified in the Schedule appended to that notification for the prupose of laying pipeline .

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

And further whereas the Central Government has after considering the said report , decided to acquire the right of user in lands specified in the schedule appended to this notification. : Now, therefore, in exercise of the power conferred by sub section ( 1 ) of the section (6) of the said Act, the Central Govt. hereby declares that the right of user in the said lands specified in the schedule appended to this notification hereby acquired for laying the pipelines ;

And further in exercise of power conferred by sub - section (4) of that section, the Central Govt. directs that right of user in the said lands shall instead of vesting in the Central Govt, vests on this date of publication of the declaration in the Assam Gas Company Limited free from encumbrances .

SCHEDULE

State : Assam District -Jorhat

Area

Mouza

Circle

NameofVillage

Remarks

B

K

L

Patta No.

Dag No.

St. No.

10

9

6

7

8

3 4

5,

2

1

8

1

1

139

Waste Land

1.

Moriani Katani

0

17

1

140

Gaon

Annual

Kharikatia Village Part- III

0

0

14

421

Waste Land

0

16

0

459

Waste Land

15

4

1

Total Area-

1

6

0

54

Katani P.P. No. 36

Moriani

2. GharpholiaGaon

0

55

0

2

Gaon

P.P. No. 11

0

1

13

57

P.P. No. 34

16

0

0

58

P.P. No. 10

0

16

0

59

P.P. No. 38

63

0

0

2

P.P. No. 10

2

0

2

64

P.P. No. 52

15

65

0

2

P.P. No. 49 7494

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

2

3

4

5 2

P.P. No.31

P.P. No. 46 GharpholiaGaon (Contd.)

Moriani (Contd.)

P.P. No. 35

Katani Gaon (Contd.)

P.P. No. 39

P.P. No. 12

P.P. No. 24

P.P. No. 9

P.P. No. 33

P.P. No. 9

P.P. No. 27

P.P. No.44

P.P. No.32

P.P. No.40

P.P. No. 19

Total Area 3. DekaGaon

Moriani Katani P.P. No. 83

Gaon

P.P. No. 83

Total Area 4.

Katani

Moriani

Waste Land

Gaon Annual-2 Duklongia Chah Bagicha

T.P. No. 1

Waste Land

Waste Land

Annual -2

Waste Land

Total Area

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

7

9

8

66

0

16

0

68

14

0

1

0

109

0

18 110

0

1

0

0

0

111

15

0

112

1

13

5 113

0

2

0

114

2

0 116

0

11 117

0

11 118

0

0

119

122

1

~020021

0

123

2 1536

6

4

5 48

0

0

16 50

0

0

3

0

0

19

0

171

3

0

174

0

13 175

1

12

0

179

8 191

1

1 274

2

15 291

0

0012300

12

4

4

5

[No. O- 12016/69/2006/ONGD- III] SHRI PRAKASH, Under Secy..

नई दिल्ली , 12 सितम्बर , 2007

का.आ. 2693. - जबकि केन्द्रीय सरकार को यह प्रतीत होता है कि लोकहित में यह आवश्यक है कि नुमलीगढ़ रिफाइनरी लिमिटेड को प्राकृतिक गैस आपूर्ति के लिये दुलियाजान से नुमलीगढ़ , जिला गोलाघाट तक आसाम गैस कम्पनी लिमिटेड , दुलियाजान द्वारा पाइपलाइन बिछायी जानी चाहिए ।

और अतः यह प्रतीत होता है कि ऐसी लाइनों को बिछानें के प्रयोजन के लिये इसके साथ उपाबद्ध अनुसूची में वर्णित भूमि में उपयोग का अधिकार अर्जित करना आवश्यक है ।

अतः अब पेट्रोलियम पाइपलाइन ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 ( 1962 का 50 ) की धारा 3 की उपधारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए केन्द्रीय सरकार उसमें उपयोग का अधिकार अर्जित करने का अपना आशय एतद्वारा घोषित करती है ।

उक्त भूमि में हितबद्ध कोई व्यक्ति उस भूमि के नीचे पाइपलाइन बिछाने के लिये आपत्ति और सुझाव सक्षम अधिकारी नामतः जिला उपायुक्त शिवसागर , असम को इस अधिसूचना की तारीख से 21 दिनों के भीतर कर सकता है ।

और ऐसी आपत्ति और सुझाव देने वाला व्यक्ति यह भी बताएगा कि क्या वह अपनी सुनवाई व्यक्तिगत रूप से चाहता है अथवा किसी विधि व्यवसायी के माध्यम से । [भाग II-खण्ड् 3 ( ii) ]

7495

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

अनुसूची जिला-शिवसागर

सर्कल मौजा

क्रम गाँव का नाम

पट्टा नं.

4

1 2

3

5

डिमौ बोकोटा 1. गोहाँई गाँव

राज्य : असम

क्षेत्रफल

दाग नं.

बीघा

कट्टा

लुसा 6

9

7

8

1

670

0

9

मियादी पट्टा नं. 73

0

17

0

671

मियादी पट्टा नं. 185

4 673

0

1

मियादी पट्टा नं. 227

0

0

859

5

मियादी पट्टा नं. 73

मियादी पट्टा नं. 190-

0

2

19 862

864

0

2

0

मियादी पट्टा नं. 250

कुल :

1

3

14 [सं. ओ -12016/69/2006- ओ एन जी - III ]

श्री प्रकाश , अवर सचिव

New Delhi , the 12th September , 2007

S.O. 2693.-Whereas it appears to the Central Government that it is necessary for supply of Natural Gas to Numoligarh Refinery Limited ( NRL) in the district of Sivasagar , Assam , pipeline should be laid from Duliajan to NRL , Golaghat. AndWhereas it appears that for the purpose of laying such pipeline it is necessary to acquire the Right of User in 1

Land described in the schedule annexed hereto . Now, therefore in exercise of the powers conferred by sub - section ( 1 ) of Section 3 of the Petroleum Pipeline (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 said land may within 21 days from the date of this notification send objections and suggestions to the laying of the pipeline under the land to the competent authority, namely the Deputy Commissioner , Sivasagar District , Sivasagar , Assam .

And every person making such objections and suggestions may also state whether he wishes to be heard in person or by a legal practitioner .

SCHEDULE DISTRICT SIVASAGAR

Circle Mouza Sl . Name of Village

Patta No No.

1

2

3

5

4

1.

Bokota GohainGaon

Demow

PPNo. 73

PP No. 185

PP No. 227

PP No. 73

PPNo. 190

PP No. 250 Dag No

B

L

AREA K

Remarks 6

7

9

8

10 1

1

9

670

0

17

671

0

0

673

1

4

0

0

859

5

862

0

2

19

0

2

0

864

3

14

Total = 1 area

[No. O - 12016/69/2006-ONG - III ]

SHRI PRAKASH, Under Secy .

7496

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC . 3 ( ii )]

नई दिल्ली , 20 सितम्बर , 2007

का.आ. 2694.- केन्द्रीय सरकार को लोकहित में यह आवश्यक प्रतीत होता है कि , मैसर्स रिलायन्स गैस ट्रांसपोर्टेशन इन्फ्रास्ट्रक्टचर लिमिटेड , की काकीनाडा- हैदराबाद- उरान- अहमदाबाद ट्रंक गैस पाइपलाइन से , महाराष्ट्र राज्य में ठाणे जिले के विभिन्न उपभोक्ताओं तक प्राकृतिक गैस के परिवहन के लिए, मैसर्स रिलायन्स गैस ट्रान्सपोर्टेशन इन्फास्ट्रक्चर लिमिटेड द्वारा कोल्हन से तारापुर तक एक पाइपलाइन बिछाई जानी चाहिए;

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

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

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

अनुसूची

तहसील : डहाणु गाँव का नाम

जिला : ठाणे सर्वे/हिस्सानंबर 1.

2

9

1. कोल्हन

10

11

34/पै

13/1

33/1

16/1

39/1

17/1

नदी

जिला : ठाणे तहसील : पालघर

1

2

राज्य : महाराष्ट्र आर.ओ.यु. अर्जित करने के लिए क्षेत्रफल

हेक्टेयर

सि-एयर

एयर

4

3

5

82

00

14

15

00

20

J 12

00

-94

11

36

01

00

00

79

00

88

13.-

00

07

47

00

01

10、

04

68

00

00

03

15

राज्य : महाराष्ट्र

4

3

5

00

02

97

सर्वे नं. 86 के नजदीक नाला

. 1. बरहाणपुर

86

87

85

92

84

83

79

81

75

72

70

69

68

00

28

67

13

00

33

00

07

84

00

00

68

32

00

18

20

00

17

00

19

03

00

07

09

11

70

00

20

50

00

00

01

73

00

56

48

00

00

57

सर्वे नं. 68 और 52 के बीच में नाला

00

90

02 7497

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

[ भाग II-खण्ड 3 (ii) ]

2 1

52 1. बरहाणपुर (जारी )

180 2. आंबेदे

179बी

179सी

178

176ए

176बी

173

172

170

5

4

3

44

00

16

83

05

00

76

00

00

58

00 .

00

46

23

00

55

10

00

07

79

00

40

04

00

33

12

00

01

18

00

88

13

सर्वे नं. 170 और 167 के बीच में नाला 00

167

123-

124

125

104

126

134

127

128

133

130

129

131

286

141

285

142

143-

284

35

00

00

13

00

00

09

08

00

36

06

00

00

62

00

48

11

00

01

00

00

28

08

00

00

90

00

24

00

00

84

06

00

00

03

00

04

05

00

17

07

00

68

04

00

18

07

00

95

04

00

42

10

00

15

54

01

00

71

00

सर्वे नं. 284 के नजदीक नाला

नदी 3. नानीवली

88

86

92

93

99

94

97

98

127

83

100

134

133 3725G1/078 /

31

02

00

54

18

00

03

00

00

67

08

00

43

20

00

14

15

00

68

08

00

47

00

00

48

10

00

40

10

00

46

15

00

26

00

00

06

00

16

60

00

10 7498

[PART II-SEC. 3(ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

1

2

132

3. नानीवली ( आगे जारी )

164

148

150

163

165

162

166

185

189

207/1, 2

41

43

42

38

39

21

20

18

19

22

23

24

4

5

3

56

00

00

00

57

22

00

00

68

62

00

02

88

00

00

04

00

39

06

36

00

00

15

73

00

62

00

36

00

37

02

00

07

04

00

09

00

03

58

00

16

34

00

18

22

00

87

07

79

00

07

00

63

02

05

91

00

00

00

25

00

22

29

13

00

87

00

09

07

00

01

81

सर्वे नं. 24 और 317 के बीच में नाला

317

नदी

4. आकेगव्हाण

नदी

49सरकारी जमीन

28

26पै

27

25

39

42:

22

16

21

44

17

5. अकोली

40

41

21

42/1से 5

73

20

02

25

94

57

00

02

03

00

61

56

00

83

00

06

46

00

95

08

00

01

44

09

50

.00

00

16

36

29

54

00

00

25

63

51

00

17

93

00

14

00

21

23

00

05

09

23

00

55

05

49

00

95

00

00

00

64

52

36

00

02

00

06

88 [ भाग II-खण्ड 3(ii) ]

2 1

54 5. अकोली (जारी )

10

55

59

57

43

90 6. रावते

89

98

78

97.

94

99

102

100

125

66

130

65

40

66 W.P.F.

नदी

नदी 7. गारगाँव

97

101 फॉरेस्ट

96

102

94फॉरेस्ट

89

88

58W.P.F

78

79

82

31(463) 8. सुमडी शिगाँव गावापैकी

34(388)

39(387 )

40(385)

53(464 पै)

41(386)

51 ( 381)

52( 380)

50(379)

70(377)

72(370)

65(397)

66(399)

67(400)

7499

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

4

5 3

06

11

00

02

39

00

62

14

00

44

01

00

54

27

00

55

00

00

33

91

00

80

00

26

64

21

00

01

98

00

92

00

02

56

00

01

00

07

68

40

88

00

04

00

03

85

00

57

44

12

01

14

08

00

45

00

37

98

12

00

22

01

13

69

00

12

25

00

10

70

16

00

11

80

00

34

07

00

39

12

00

44

03

00

18

96

00

51

00

05

88

51

00

00

00

01

00

14

09

53.

00

97

29

06

01

08

21

00

01

94

00

93

00

33

41

13

01

32

00

06

24

99

00

62

02

00

02

69

00

06

20

00

23

01

00

01

84

00

76

00

10

52

07

00 7500

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

2 1

9- शिगाँव

30

29

28

31ए/बी

32

26

81

34

35

36

80

78

79फॉरेस्ट

106

107

108

323

112

67

124

121

119

120

140

127

126

129

128

141

142

144

153

154

155ए/बी

156

162

163

165

166

167 10- नेवालेगाँव

124/4ए

89/1

88

81

86/पै

85

82

83

79

121

115ए 3

4

5

00

00

15

00

06

87

00

00

36

00

34

58

72

00

01

00

03

52

27

00

10

16

00

36

08

00

27

89

00

09

00

24

13

00

55

73

00

71

15

00

68

02

00

09

44

00

23.

91

00

17

07

00

04

46

45

11

00

00

39

00

07

41

54

13

74

58

26

00

54

02

56

01

71

63

03 888 00 08

16

07

98

15

82

52

06.

17

00

05

11

63

00

02

00

70

23

00

62

28

00

41

39

26

87

27

00

63

00

00

04

00

35

84

55

58

00

24

03

05

59

00

00

10

23

00

58

47

00

41

03

56

00

33

00

11

83

00

23

41 [ भाग II खण्ड 3 ( ii ) ]

7501

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

1

2

52 11- मुंडावली

57

72/3

69

नदी 12. अंबातपाडा

सर्वे नं. 11 के नजदीक नाला

11

13/1

14

16/6

16/1 13. परनाली

22

4

5

3

33

02

57

09

00

22

00

45

12

00

50

08

00

52

03

00

01

91

00

25

17

00

18

71

00

33

93

00

09

00

00

07

97

09

10

00

[फा. सं. एल. 14014/11 /2007-जीपी]

एस. बी. मंडल अवर सचिव

New Delhi , the 20th September, 2007

S.O. 2694.-Whereas it appears to the Central Government that it is necessary in public interest that for transportation of natural gas from the Kakinada - Hyderabad- Uran - Ahmedabad trunk gas pipeline of M/s . Reliance Gas Transportation Infrastructure Limited ,

To various consumers of district Thane in State of Maharashtra , a pipeline should be laid from Kolhan to Tarapur 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 necessary to acquire the right of user in land under which the said pipeline is proposed to be laid and which are described in the Schedule annexed hereto;

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

Any person interested in the land described in the said Schedule may , within twenty- one days from the date on which the copies of the notification as published in the Gazette of India , 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

District: Thane

Tehsil : Dahanu

Village

Survey/Sub-division No.

2 1

9 Kolhan

(1)

10

11

34/P

13/1

33/1

16/1

39/1

17/1

River State : Maharashtra

Area required for Rou Acquisition

Are

C-Are Hect.

4

3

5 00

14

82 00

15

20

00

94

12

01

36

11

79 00

00

00

13

88

47 00

07

00

01

10 00

04

68

15 00

03 7502

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

1

2

Nala near Svy . No. 86 (1) Barhanpur

86

87

85

92

84

83

79

81

75

72

70

69

68

Nala in bet . Svy . No. 68 & 52

52

180

(2) Ambede

179B

179C

178

176A

176B

173

172

170

Nala in bet . Svy . No. 170 & 167

167

123

124

125

104

126

134

127

128

133

130

129

131

286

141

285

142

143

284

Nala near Svy. No. 284

River

88

(3) Nanivali

86

92

93

99

94

97

98

[PART II-SEC. 3 (ii ) ]

4

3

5.

02

97 00

00

28

67

33

13 00

00

84

07

00

68

00

00

18

32 00

20

17

00

19

03 00

09

07

00

11

70

20 00

50

00

01

73 00

56

48

57. 00

00

00

90

02

00

16

44 00

05

83 00

76

00

00

00

58 00

23

46. 00

55

10

00

07

79 00

04

40 00

12

33 00

01

18 00

13

88 00

00

35

00

00

13 00

08.

09 00

36

06

00

00

62 00

48

11

00

00

01 00

28

08

00

00

90 00

00

24 00

84

06

00

00

03 00

04

05

17 00

07

00

04

68 00

18

07

00

95

04

00

42

10

54

15 00

00

71 00

02

31 00

18

54 00

00

03 00

67

08

00

43

20

00

14 00

68 00

00

47 00

48 [भाग II-खण्ड 3 (ii) ]

2 1

127 (3) Nanivali (Cont ...)

83

100

134

133

132

164

148

150

163

165

162

166

185

189

207/1,2

41

43

42

38

39

21

20

18

19

22

23

24

Nala in bet. Svy . No. 24 & 317

317

River

River (4) Aakegavhan

49G.L.

28

26P

27

25

39

42

22

16

21

44

17

40 (5) Aakoli

41

21

42/1 to 5

73

20

54

10

55

59

57

43

7503

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

5 3

4

40 00

10

46

15

00

00

26

00

06 00

16

60 00

10

56

00

00

57

22

00

68 00

00

62 00

02

00

88 00

00

04

39

36 00

06

73 00

15

62 00

00

00

36

37 00

07

02

04 00

09

58

03

16

00

34

22

18

00

87

07

79 00

07

63 00

02

00

05

91

00

25

00

29 00

22

13

87 00

07

00

09 00

81

01

94

25

02

57 00

02

00

61

03

00

56

83 00

06

46

08 00

95

00

01

44

09

8:00

50

36 00

16

29

54 00

25

63 00

51 00

17-

00

93

14

21

23

.05

09

00

23

55

05 00

49

95 00

00

52 00

64

36 00

02

88

06

11

06

39

02

62

14

44 00

01

54

27

00

$5

55

00

00 7504

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

2 1

90 (6) Ravate

89

98

78

97

94

99

102

100

125

66

130

65

40

66W.P.F.

River

River (7) Gargaon

97

101 F.L.

96

102

94F.L.

89

88

58WPF

78

79

82

31(463) (8) Sumadi out of Shigaon

34(388)

39(387)

40(385)

53(464P)

41(386)

51(381 )

52(380)

50(379)

70(377)

72(370)

65(397)

66(399)

67(400)

30 (9) Shigaon

29

28

31A/B

32

26

81

34

35

36

80

78

5 3

4

91 00

33

00

26

80 00

64

21

00

01

98

02

92 00

56 00

01

68 00

07

00

40

88

04

03

00

00

57

85 01

12

44

08

14 00

00

45

37

00

12

98

13

00

12

20 22 69 .

00

25

10

00

16

70 00

80

11

07

00

34

39 00

12

03

44 00

00

96

18

00

51

05

51

88 00

00

01

00

00

14

09

53 00

97

29

06

01

21

00

08 00

01

94 00

93

33

13

41 01

00

06

32 00

24

99 00

62

02

69 00

02

00

20

06 00

01

23 00

01

84 00

76

10

52 00

07

00

00

15 00

06

87 00

36

00

00

34

58 00

01

72

03

52 00

27 00

10

00

16

36 00

03

27

09

89 00

13 00

24

00

73

55 [भाग II-खण्ड 3 (ii) ]

2

1

79 (F.L. ) (9) Shigaon (Contd .)

106

107

108

323

112

67

124

121

119

120.

140

127

126

129

128

141

142

144

153

154

155A/B

156

162

163

165

166

167

124/4A (10) Nevalegaon

89/1

88

81

86/P

85

82

83

79

121

115A

52 (11) Mundavali

57

72/3

69

River

Nala near Svy. No. 11 (12) Ambatpada

11

13/1

14

16/6

16/1

22 (13) Parnali

3725 G1 /07-0

7505

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

4

5 3

71

15

00 .

02

68 00

44

09

00

23

91 00

17

07

00

46

04

00

45

11

01

39

00

00

07

41 00

54

01

00

74

13

00

58

26

00

54 00

02

56

01

00

71

03

63

00

00

08

16

98

07

00

00

82

15

06

52 00

05

17

00

63

11

00

00

02

00

70

23

00

62

28

00

:

39 00

41

87 00

26

63

27

04

00

84

35

58 00

55

03

24

00

05 00

59

23

10

00

58

47

00

03

41

00

33

58

00

11

83 00

41

23

00

33

57

02

09

22

00

45

12

00

50 00

08

52

03

00

91

01

00

25

17

00

71 00

18

93 00

33

00

: 09 00

97 00

07

09 00

10

[F. No. L- 14014/11 /2007/GP]

S. B. MANDAL , Under Secy .

7506

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929. [PART II-SEC. 3( ii)]

नई दिल्ली, 20 सितम्बर , 2007

का.आ. 2695.- केन्द्रीय सरकार ने 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 3 की उपधारा ( 1 ) के अधीन जारी की गई भारत सरकार के पेट्रोलियम और प्राकृतिक गैस मंत्रालय की अधिसूचना संख्या का.आ. 108 ( अ ) तारीख 31 जनवरी 2007 द्वारा उस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में, मैसर्स रिलायन्स इंडस्ट्रीज लिमिटेड , की आन्ध्रप्रदेश में संरचनाओं से महाराष्ट्र राज्य में लातुर और उस्मानाबाद जिले के विभिन्न उपभोक्ताओं तक प्राकृतिक गैस के परिवहन के लिए मैसर्स रिलायंस गैस ट्रान्सपोर्टेशन इंफ्रास्ट्रक्चर लिमिटेड द्वारा पाइपलाइन बिछाने के प्रयोजन के लिए उपयोग के अधिकार का अर्जन के अपने आशय की घोषणा की थी;

और उक्त राजपत्र अधिसूचना की प्रतियाँ जनता को तारीख 7 मार्च , 2007 को अथवा उससे पहले उपलब्ध करा दी गई थी;

और पाइपलाइन बिछाने के संबंध में जनता की ओर से कोई आक्षेप प्राप्त नहीं हुआ है ;

और सक्षम प्राधिकारी ने उक्त अधिनियम की धारा 6 की उपधारा ( 1 ) के अधीन केन्द्रीय सरकार को अपनी रिपोर्ट दे दी है;

और केन्द्रीय सरकार ने , उक्त रिपोर्ट पर विचार करने के पश्चात् और यह समाधान हो जाने पर कि उक्त भूमि पाइपलाइन बिछाने के लिए अपेक्षित है , उसमें उपयोग के अधिकार का अर्जन करने का विनिश्चय किया है;

अतः अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 6 की उपधारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , यह घोषणा करती है कि इस अधिसूचना से संलग्न अनुसूची में विनिर्दिष्ट भूमि में पाइपलाइन बिछाने के लिए उपयोग के अधिकार का अर्जन किया जाता है;

और, केन्द्रीय सरकार, उक्त अधिनियम की धारा 6 की उपधारा ( 4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , यह निर्देश देती है कि उक्त भूमि में उपयोग का अधिकार इस घोषणा के प्रकाशन की तारीख से केन्द्रीय सरकार में निहित होने के बजाए , सभी विल्लंगमों से मुक्त, मैसर्स रिलायंस गैस ट्रान्सपोर्टेशन इंफ्रास्ट्रक्चर लिमिटेड में निहित होगा। :

अनुसूची मंडल/तहसील/तालुका : निलंगा

जिला : लातुर गाँव कानाम

सर्वे/हिस्सा नंबर 1

2

131

(1 ) ममदापूर

112

229

230

268

269

270

298

236

301

सड़क गट नं. 298 में (2) हलाली

115

125

10

318

108

राज्य : महाराष्ट्र

एयर आर.ओ.यु. अर्जित करने के लिए क्षेत्रफल

हेक्टेयर

सि-एयर 4

3

5

00

17

20

01

20

00

00

10

03

40

00

03

10

00

70

00

03

50

00

20

01

00

01

40

00

16

30

00

00

.50

00

00

09

00

01

40

00

01

50

00

06

40

00

09

50

80

00

03

00

30

सड़क गट नं. 318 और 14 के बीच

(3)मिरगनहतली

58

19/ड

(4) नेलवाड

18/अ

(5) औंढा

159

162

164

03

00

14

90

17

00

00

00

31

80

00

22

60

05

00

90

05

20

00 [भाग II-खण्ड 3 ( ii) ]

2 1

168 (5) औंढा-जारी

169

209

207

206

199

197

196

238

273

272

276

289

308

321

324

124

163

237

कालवा गट नं. 2002 में

77/ख (6) हसोरी ( बु)

78/अ

79/क

169/ड (7)कसार-सिरसी

162/फ

169/ब

36/इ (8) हतरगा ( हलासी )

37/आ

37/अ

22/ब

22/क

23/गा

24/आ

3/डा

4/खा

4/अ

113/अ

112/अ

55/अ (9) हलसी ( हतरगा )

55/ब

51 /ब

5/ब

6

106.

98/ब

7507

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

5

4

3

50

00

21

20

13

00

07

30

00

50

11

00

06

30

00

00

12

00

00

07

30

20

05

00

00

01

40

00

00

02

01

70

00

60

00

00

50

02

00

90

00

02

90

05

00

15

90

00

30

18

00

50

00

07

00

30

00

04

10

00

60

70

00

60

00

04

20

08

00

00

23

92

8.ని

23

90

00

30

00

90

60

00

07

00

35

30

50

00

16

05

04

00

70

06

00

20

00

12

00

00

16

00

10

03

00

10

03

00

07

30

04

00

50

20

00

03

70

00

00

02

00

30

00

00

02

90

02

00

20

01.

00

10

00

07

00

00

50 7508

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

(1)

(2)

75-

(9) हलसी ( हतरगा ) -जारी

82/क

83/ब

5/क

16/ब

(10) हंद्राल

24/अ

25/अ

17

18/अ

(11) डोंगरगांव ( हालीखेड)

16/ब

जिला: उस्मानाबाद मंडल/तहसील/नालुकाः उमरगा

154/1/2 (1)चाकुर

155/4/1

157/1

160/1/2

161/1/3

164/3

139/1 :

132/1

132/3

132/5

84/1

83/1/1

75/2/2

34/1/1

33/2/1

140

132/2

75/4

75/3

72

71

82/6

126

(2)बोरी

131

114

259

119

39/1

(3) नारंगवाडी

15/2

14/8

223/4

230

(4) पेठसांगवी

215/3

215/2

2477

247/2

216/2

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

(4)

(5)

00

21

30

06

40

00

00

05

40

00

80

01

00

70

11

00

22

50

00

06

70

00

10

00

30

00

00

राज्य : महाराष्ट्र

00

03

40

70

00

37

00

02

20

00

00

03

59

60

00

00

50

16

00

00

05

00

16

50

80

00

18

00

00

90

00

88 02 06

80

00

15

21

90

60

12

50

18

02

90

40

32

00

10

04

00

20

16

40

00

00

00

10

60

38

00

40

00

54

60

22

00

30

02

00

60

36

00

00

60

05

32

00

00

70

03

00

03

80

40

06

20

10

90

30

00

10

60

00

04

00

00

03

40

00

40

23 [ भाग II-खण्ड 3 ( ii) ]

(1)

(2)

7509

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

(3)

(4)

(5)

जिला: उस्मानाबाद

मंडल/तहसील/तालुकाः लोहारा

(1)चिंचोलीरेवे

17/1/1

13/4

8/1

37/1 (2)सास्तुर

11/3

9/1

33/1/3

8/1

35/1 (3) भातागली

60/1/5

60/1/4

60/6

101/2

35/1 (4)कानेगांव

36/1

37/2/2

41/2

300/1

288/1

37/4

38/2बी

26

27

22

20/1

301/4

301/3

65

(5)अरनी

68/4

27/1/1

63/2/1

67/5

5/2

जिला : लातुर मंडल/तहसील/तालुकाः औसा

39/क (1) मंगरूल

39/ब

39/अ

43

62

39/ड

60/ब

61

63/ब

68/इ

68ड

68/क राज्य: महाराष्ट्र

00

25

30

00

21

20

00

12

70

00

20

30

00

26

00

52

00

10

00

24

00

00

20

00

00.

36

00

06

00

00

00

06

00

00

19

00

00

70

20

00

82

30

00

03

60

00

12

50

00

07

60

00

03

-90

00

49

80

15

00

70

00

33

80

00

30

01

00

04

00

00

00

17

11

00

00

00

32

20

00

31

00

06

00

11

03

00

00 00 00 8888888 00

06

00

04

00

32

राज्य: महाराष्ट्र

00

08

00

03

00

02

07

70

00

60

10

00

00

08

40

00

03

00

00

20

18

33

00

50

00

00

00

00

00

888 09 09 06

00 [PART II-SEC . 3 (ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

7510

(2)

(1)

8/व

(2)गुबाल

6/क

(3) लोहाटा

245/3

(4) आशीव

जिला: उस्मानाबाद मंडल/तहसील तालुका: उस्मानाबाद

69/2

(1) भंडारी

72/1

75/2

237

(2)नांदुर्गा

1

4

19 .

24

28

29

40/1

249

27/1

(3) बरमगाव ( खुर्द )

26

182

(4) महादेववाडी

(5)

(3)

(4)

00

18

00

40

29

00

10

00

45

राज्य : महाराष्ट्र

60

32

00

00

00

06

15

10

00

00

21

00

09

00

00

00

06

00

40

05

00

00

06

00

06

30

00

20.

04

00

00

19

00 :

00

10

10

00

01

00

50

00

07.

80

03

00

00

07

70

नाला गट नं. 179 और 190 में

127

(5)विठ्ठलवाडी

199

245

251

222

(6) आनसुर्डा

72

(7) पलसवाडी

145

165

123

122

36

(8) गावसुद

466/2

(9 ) उस्मानाबाद ( ग्रामीण )

639/2

637/1

635/2

669/3

616/12

619/6

620/1

620/4

620/5

638/1,2

668/4

628/1,2

627/1,2,3 00

40

00

30

16

00

60

00

14

27

70

00

05

10

00

10

00

01

00

01

00

70

00

04

11

00

80

00

90

10

00

09

60

00

30

08

50

23

00

70

00

34

40

06

00

10

00

26

20

24

00

01

00

10.

50

00

11

70

00

03

80

13

00

35

20

00

40

00 .

39

00

50

44

10

00

19 भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 3 (ii ) ]

(1)

(2)

626/15 (9 ) उस्मानाबाद ( ग्रामीण ) -जारी

626/7

626/12

626/3

616/17

616/15

616/6

619/14

453/6

453/3/क

7511

(5)

(4)

(3)

20

98

00

50

00

00

30

00

16

10

02

00

70

00

02

40

00

00

10

00

11

40

00

10

20

00

27

50

00-

44

60

00

06

सड़क सर्वे नं. 625 और 627 में

37

(10)आंबेहोल

147

(11) खानापूर

179

184

187

191

193

200

202

203

204

206

207

+

208

189

(12)कौडगांव

261

235

234

240

233

231/1

231/2

230

337

336

222

244

(13) आंबेजवलगे

226

247

253

252

20

00

16

27

70

00

70

53

00

21

20

00

70

26

00

00

10

00

60

03

00

00

01

90

02

30

00

30

01

00

01

50

00

20

17

00

01

90

00

04

90

00

60

00

05

50

05

00

60

00

05

26

60

00

40

00

20

00

28

00

80

00

16

13

00

40

00

00

36.

20

00

37

00

70

18

50

53

00

56

00

70

58

02

00

42

00

60

21

53

00

40

00

56

00

00

02

ड्रेन गट नं. 252 में

[फा. सं. एल-14014/4/2006-जी.पी. ] एस. बी. मण्डल , अवर सचिव 7512

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929 [PART II-SEC. 3( ii) ]

New Delhi , the 20th September , 2007

S.O. 2695.-Whereas by notification of Government of India in Ministry of Petroleum and Natural Gas , number S.O. 108(E) dated: 31st January , 2007 issued under sub - section ( 1 ) of Section 3 of the Petroleum and Minerals Pipelines (Acquisition of Right ofUser in Land) Act, 1962 (50 of 1962 ) (hereinafter referred to as the said Act) , the Central Government declared its intention to acquire the Right of User in the land , specified in the Schedule appended to that notification for the purpose of laying pipeline for transportation of natural gas from Structures in Andhra Pradesh of M/s . Reliance Industries Limited, by M/ s . Reliance Gas Transportation Infrastructure Limited to the various consumers of District Latur and Osmanabad in the State of Maharashtra ;

And whereas the copies of the said Gazette notification were made available to the public on or before 7th March , 2007;

And whereas no objections were received from the public to the laying of the pipeline ;

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

Andwhereas the Central Government , after considering the said report and on being satisfied that the said land is required for laying the pipeline , has decided to acquire the Right of user therein ;

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

And further , in exercise of the powers conferred by sub - section (4) of Section 6 of the said Act , the Central Government hereby directs that the Right of user in the said land for laying the pipeline shall , instead of vesting in the Central Government , vest on the date of publication of the declaration , in M/s . Reliance Gas Transportation Infrastructure Limited, free from all encumbrances .

SCHEDULE

District: Latur Mandal/Tehsill Taluka: Nilanga

Village

Survey/Sub-division No. (1)

(2)

131

(1) Mamdapur

112

229

230

268

269

270

298

236

301

Road in Gat No. 298

115

(2) Halali

125

10

318

108

State: Maharashtra

Area to be acquired for ROU

Are

Hectare

C-Are (3)

(4)

(5)

00

20

17

00

01

20

00

03

10

00

03

40

00

10

70

00

03

50

01

20

00

00

40

00

16

30

00

00

50

00

09

00

00

40

00

01

50

00

06

40

'00

09

50

00

80

03

00

Road between Gat No. 318 & 14

58

(3)Mirganhalli

19/D

(4) Nelwad

18/A

30

03

00

14

90

00

00

17

31

00

80 [भाग II-खण्ड 3 (ii) ]

7513-

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

(2)

(1)

159

(5) Aundha

162

164

168

169

209

207

206

199

197

196

238

273

272

276

289

308

321:

324

124

163

237

Canal in Gat No. 202

77/Kh

(6)Hasori (Bk)

78/A

79/C

169/0

(7)Kasar- Sirsi

162/F

169/B

36/E

(8)Hatarga(Halsi) :

37/Aa

37/A

22/B

22/C

23/Ga

24/Aa

3/Da

4/Kha

4/A

113/A

112/A

55/A

(9) Halsi (Hatarga)

55/B

51/B

5/B

6

106

3725 G1/07-10

(5)

(4)

(3)

00

22

05

00

09020 60

00

05

00

21

50

20

00

13

30

00

07

50

00

11

00

06

30

00

00

12

00

07

30

00

05

20

00

40

01

00

02

00

70

00

01

60

00

00

00

02

50

90

00

02

90

00

05

15

90

00

30

00

18

50

07

00

00

00

30

10

00

04

70

00

60

60

00

04

20

08

00

92

00

23

90

23

00

30

00

90

07

60

00

30

35

00

16

50

00

04.

05

00

70

00

06.

20

12

00

00

00

16

10

03

00

10

03

00

30

00

07

50

04

00

03

20

00

70

00

00

30

00

02

00

02

00

90

02

00

20

00

07

10

00 7514

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(1)

(2)

98/B

(9) Halsi (Hatarga)

75

82/C.

83/B

5/C

16/B

(10)Handral

24/A

25/A

17

18/A

(11 ) Dongargaon (Halikhed)

16/B

District: Osmanabad Mandal/Tehsi Taluka: Umarga

(1) Chakur

154/1/2

155/4/1

157/1

160/1/2

161/1/3

164/3

139/1

132/1

132/3

132/5

84/1

83/1/1

75/2/2

34/1/1

33/2/1

140

132/2

75/4

75/3

72

71

82/6

126

(2)Bori

131

114

259

119

39/1

(3)Narangwadi

15/2

14/8

223/4

230

(4) Peth.Sangvi

215/3

215/2

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

(4)

(5)

00

50

001

00

21

30

00

06

40

00

05

40

00

01

80

00

11

70

00

22

50

00

06

70

00

08

10

00

02

30

00

02

00

State: Maharashtra

03

40

00

00

70

37

00

02

20

00

00

03

00

59

60

00

16

50

00

05

00

00

16

50

00

18

80

00

00

02

06

00

90

00.

15

80

00

21

90

00

60

12

00

50

18

00

02

90

40

00

32

04

00

10

00

16

20

00

00

40

00

10

60

38

40

00、

00

00

54

00

60

22

02

00

30

36

00

60

05

00

60

00

00

32

00

03

70

00

80

03

00

06

40

00

10

20

00 .

30

90

00

60

10 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

(1)

(2)

2477 (4) Peth.Sangvi

247/2

216/2 Mandal/TehsilTaluka : Lohara

District: Osmanabad

17/1/1 (1) Chincholi Rebe

13/4

8/1

(2) Sastur

37/1

11/3

9/1

33/1/3

8/1

35/1

(3)Bhatagali

60/1/5

60/1/4

60/6

101/2

35/1

(4) Kanegaon

36/1

37/2/2

41/2

300/1

288/1

37/4

38/2B

26

27

22

20/1

301/4

301/3

65

(5)Ami

68/4

27/1/1

63/2/1

67/5

5/2

Mandal/Tehsil/Taluka : Ausa

District : Latur

39/C

(1)Mangrul

39/B

39/A

43

62

39/D

60/B

61

7515 (3)

(5)

(4)

00

04

00

00

03

40

00

23

40

State: Maharashtra

00

25

30

21

20

00

00

12

70

20

00

30

26

00

00

00

52

10

00

24

00

20

00

00

00

36

00

00

06

00

00

00

06

00

19

00

00

70

20

00

82

30

00

60

03

00

12

50

07

60

00

00

90

03

00

49

80

00

15

70

33

00

80

00

01

30

04

00

00

00

17

00.

00

00

11

20

00

32

00

31

00

00

06

00

00

30

11

00

03

00

06

00

20

04

40

00

00

32

60

State: Maharashtra

00

08

90

00

03

90

00

02

50

00

07

70

00

10

60

00

40

08

00

03

00

.20

00

18 7516

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

(1)

(2)

63/B (1)Mangrul

68/E

68/D

68/C

8/B (2)Gubal

6/C (3) Lohata

(4) Ashiv

245/3 Mandal/Tehsil/Taluka : Osmanabad

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

(4)

(5)

00

33

50

00

09

00

00

09

00

00

06

00

00

18

00

00

29

40

00

45

10

District : Osmanabad

69/2 (1)Bhandari

72/1

7512

237 (2)Nandurga

1

4

19 .

24

28

29

40/1

249

27/1 (3) Baramgaon (Kh)

26

182 (4) Mahadevwadi

State: Maharashtra

00

60

32

00

00

06

00

10

15

00

21

00

00

09

00

00

00

06

05

00

40

00

00

06

06

00

30

00

20

04

00

19

00

00

10

10

00

01

00

00

07

50

00

03

80

00

07

70

Nala in Gat No. 179 & 190

127 (5)Vitthalwadi

199

245

251

222 (6) Ansurda

72 (7) Palaswadi

145

165

123

122

36 (8) Gaosud

466/2 (9)Osmanabad(Rural)

639/2

637/1

635/2

669/3

616/12

619/6

620/1

620/4

620/5

638/1,2 00

00

40

00

30

16

00

14

60

00

27

70

05

00

10

00

10

01

00

00

01

00

04

70

00

11

80

00

10

90

00

09

60

00

08

30

00

23

50

00

34

70

00

06

40

00

26

10

00

24

20

00

ΟΙ

10

00

11

50

00

03

70

13

00

80

00

35

20 [भाग II-खण्ड 3 ( ii ) ]

(1)

(2)

668/4 (9) Osmanabad (Rural )

628/1,2

627/1,2,3

626/15

626/7

626/12

626/3

616/17

616/15

616/6

619/14

453/6

453/3/C

7517

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

(3)

(4)

(5)

00

39

40

00

50

44

00

19

10

00

20

98

00

00

50

00

30

16

00

02

10

00

02.

70

00

00

40

00

11

10

00

10

40

00

27

20

00

44

50

00

06

60

Road in Survey No. 625 & 627

37 (10)Ambehol

147 (11)Khanapur

179

184

187

191

193

200

202

203

204

206

207

208

189 (12) Kaudgaon

261

235

234

240

233

231/1

231/2

230

337

336

222

244 (13)Ambejawalge

226

247

253

252 00

16

20

00

27

70

53

00

70

00

20

21

26

70

00.

00

10

00

00

03

'60

00

01

.90

00

02

30

00

01

30

00

50

01

00

17

20

00

01.

90

00 /

04

90

00

05

60

00

05

50

00

05

60

00

26

60

00

20

40

00

28.

00

00

16

80

00

13

40

00

36

00

00

20

37

00

70

18

00

53

50

00

56

70

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02

58

00

60

42

00

21

53

00

56

40

00

Drain in Gat No. 252

02

00

[F. No. L- 14014/4/2006-G.P.] S. B. MANDAL , Under Secy.

7518

[PART II SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

श्रम एवं रोजगार मंत्रालय नई दिल्ली, 24 अगस्त, 2007

the dispute on its filė as CGID No. 186/99 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. 153/2004.

का.आ. 2696.-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 153/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/477/1998 - आईआर (बी -1 ) ] अजय कुमार , डेस्क अधिकारी

MINISTRY OF LABOUR AND EMPLOYMENT New Delhi , the 24th August, 2007

"Whether the demand of the workman Shri B. Periasamy , 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 :-

S.O. 2696. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 153/ 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 24-08-2007.

[No. L- 12012/477/1998 - IR (B - I) ] AJAY KUMAR , Desk Officer

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

Wednesday , the 31st January, 2007

PRESENT

Shri K. Jayaraman, Presiding Officer IndustrialDispute No. 153/2004

(Principal Labour Court CGID No. 186/99)

(Inthematter of the dispute for adjudication under clause (d) of sub - section ( 1 ) and sub- section 2( A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , betweenthe Management of State Bank of India and their workmen)

BETWEEN

: I Party/Petitioner

Sri .B.Periasamy

AND

TheAssistant General Manager, II Party/ Management State Bank of India , Region - I Trichirapalli,

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative.

: M/ s . K. S. Sundar ,

For the Management

Advocates

AWARD

}

1. The Central Government Ministry of Labour , vide Order No. L- 12012/477 / 1998 - IR (B - I) dated 12-03-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken

The 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 H.E. Kailasapuram Branch from 06-01-1982 . The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject- matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court. The Respondent/ Bank, in addition to its counter , filed a copy of settlement underSection 18( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the 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 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 6-1-1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in H.E. Kailasapuram Branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in

ن [भाग II- खण्ड 3 (ii) ]

7519

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-1997 . Hence , the Petitioner raised a dispute with regard to his non-employment . Since the conciliation ended in failure, 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 bypaymentofpetty 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 .

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. 301 in wait list ofZonal Office, Trichy . So far 212 wait listed temporary candidates, out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose. When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement , employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category(B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in 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 , outof 652 wait listed candidates , 212 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 4. As against this , the Respondent in its Counter Statement alleged that reference madeby the Government for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18( 1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was waitlisted as per his length of engagement and could not be absorbed as he was positioned down in 7520

[PART II SEC. 3 ( ii)] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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

(1) "Whether 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?"

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

PointNo. 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 .

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 andwhile the matter was pending in Writ Petition No. 542 ( Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M 1. The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by Employment Exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent/Bank hasbeen arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour.

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 theRespondent/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 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 ofthe Petitioner . Hence , the Petitioner prays that an award may be passed in his favour .

7521.

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 3 ( ii) ]

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.M 1, 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 on 2-5-92 but there is no pleading in the Counter Statement with regard tothis wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment of MW 1 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 10 namely wait list is not in conformity with the instructions of Ex . M2 and non- preparation of separate panels amounts to violation of circular . Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No. 11932/91 in W.P. No.7872/91 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 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 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 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 MW I and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of' A, B & C' is quite opposed to the doctrine of ' last come-first go'or ' first come- last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex . Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave /casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex . W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis , should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter 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

3725 GI/07-11 7522

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

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 ofthe 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 of Respondent/ Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Section 25B and 25F of the Industrial DisputesAct, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service 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 cail 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.

violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex. M1 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 of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo ) of the I.D. Act , 1947.- Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ workmen as 'badlies ' , casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex . M10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it . Though clause 2(e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination of the Petitioner who was in regular service ofthe Respondent/Bank is arbitrary , mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex. M6which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18 (3 ) settlement nor 12( 3 ) settlement as claimed by the Respondent /Bank which says only with regard to 7523 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

exceptional cases , where there may be allegations ofmala fides, fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 К.С.Р. LTD. VS. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18( 3 ) . A settlement of the first category has limited application andbinds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen 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 good will between them. When there is a dispute that the settlement is not bonafide in nature or that it has been arrived at on account offraud, misrepresentation or concealment 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 settleinent , 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 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 ofhis engagengagement 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 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 [PART II--SEC. 3 ( ii ) ] 7524

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 .

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 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 whichfalls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Government service in an existing or a future vacancy . " In that case , pruning of select list on reduction in number of vacancies was made inviewofthe 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 ofappointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was 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 panelfor 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 12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference , if points of difference are discerniblefrom the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor 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 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 mannerwhich 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 happilyframed 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 7525 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

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 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 .

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 inpreparing 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 allegedby 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 continuedfor 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 meahs 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 needfor regular post. Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as ofthe other. Just because in one case , a direction was given to regularise employees who have 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 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

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 dueprocess ofselection 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 7526

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929 [PART II-SEC . 3 ( ii) ] employment has come to an end or of ad- hoc employees . appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the waitlist prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparation 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 ofthe Respondent /Bank .

18. Further , the representative for the Petitioner contended that in a similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore , I find this point against the Petitioner .

who by the very nature oftheir appointment, do not acquire any right. " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in à position to bargain not at arm's length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode of public appointment which is not permissible. " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ............. It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by 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 Appellantfor the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Article 14 and 16 ofthe Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions ofthis court probably having regard to the changes in the policy decisions ofthe 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 :

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

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

[ भाग II-खण्ड 3 ( ii) ]

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him . No Costs .

21. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , correctedandpronounced by me in the open court on this day the 31st January , 2007) .

K. JAYARAMAN, Presiding Officer Witnesses Examined:

For the Petitioner WW1 Sri B. 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 1-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex . MI .

W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation 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 dailywages based on Ex . W4.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-3-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-3-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the 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 certification issued by H.E. KailasapuramBranch.

W10 Nil Xerox copy of the service certificate issued by Kmamarajapuram branch .

04-02-95

W11

Xerox copy of the service certification issued by Kailasapuram branch .

W12 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate care & service conditions .

W13 Nil Xerox copy of the Vol. III of Deference book on Staffmatters upto 31-12-95 .

06-03-97

W14

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

7527

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

06-03-97

W15

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

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

17-03-97

W17

Xerox copy of the service particulars- J. Velmurugan.

W18 26-03-97 Xerox copy of the letter advising selection ofparttime Menial-G . Pandi .

31-03-97

W19

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 .

13-02-95

W21

Xerox copy of the Madurai Module Circular letter about Engaging temporary employees from the panel of waitlist .

09-11-92

W22

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

09-07-92

W23

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 appointinent of temporary employees in subordinate cadre.

Ex. No ..Date

FortheRespondent/Management :- Description

M1

Хегоx copy of the settlement .

17-11-87

M2

Xerox copy of the settlement .

16-07-88

M3

Xerox copy of the settlement .

27-10-88

M4

Xerox copy of the settlement .

09-01-91

M5

Xerox copy of the settlement .

30-07-96

M6 09-06-95

proceedings . Хегоx copy of the minutes of conciliation 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 .

7528

[PART II-SEC . 3 ( ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

नई दिल्ली , 24 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. 198/99 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. 155/2004.

का.आ. 2697. 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 155/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/406/1998 - आईआर( बी- I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 24th August, 2007

" Whether the demand of the workman Shri R. Kanagasabai , wait list No. 613 for restoring the wait list of temporary messengers in the establishment of State Bank of India and conse- quential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ? "

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

S.O. 2697. In pursuance of Section 17 of the Industrial Disputes Act , 1947, ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 155/ 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- 12012/406/1998 - 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. 155/2004

(Principal Labour Court CGID No. 198/99)

(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. Kanagasabai

: 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 . K. S. Sundar ,

Advocates .

AWARD

1. The Central Government, Ministry of Labour, vide OrderNo. L- 12012/406/98 - IR (B - I) dated 10-03-1999 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 Kattumannar Kovil branch from November , 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 Kattumannar Kovil branch . He was called for an interview by a Committee appointedby Respondent/Bank in this regard . But, they have not informed the result of interview and also with regard to appointment. But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From November , 1982 the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Kattumannar Kovil 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 7529 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

Petitioner orally on 31-3-1997 that his services are not required any more and he need not attend the office from 1-4-1997 . Hence , the Petitioner raised a dispute with regard to his non-employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-1997 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the 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 .

of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-1987, 16-07-1988,7-10-1988 , 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. 613 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 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 of 36 calendar months were to be considered. As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 613 , 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 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

3725 GI /07-12 7530

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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 circleofChennai wait list of daily wagers was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list, the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

5. In the additional claim statement , the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent /Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence , the Petitioner prays that an award may be passed in his favour .

6. Again , the Petitioner filed a re joinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18(3 ) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights ofthe Petitioner . Hence, the Petitioner prays that an award may be passed in his favour .

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

(i) "Whether the demand of the Petitioner in Wait List No. 613 for restoring the wait list of

[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 :-

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 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 the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour. authorities and they questioned the retrenchment as unjust and illegal and they furtherprayed for reinstatement with back wages and other attendant benefits .

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees in the Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case, the Petitioner is not bound by settlement under Section 18 (1 ) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees 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 7531 [भाग II खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929.

onthe settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. Ml , M3 and M4 respectively . But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MW 1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondents are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 ofConstitution of India , Further , the averment of MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to 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 comarises of bothmessengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industry wise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter ofabsorption . Therefore , it is violative of Articles 14 & 16 ofConstitution of India. Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is not inconformity with the instructions of Ex . M2 and non- preparation of separate panels amounts to violation of circular . Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/ published even after the Court order in WMP No.11932/91 in W.P.No.7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in ' The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex. M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things, it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex . M I 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 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 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 . M1 and the áverments of MW1 and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 ofEx . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of 'A, B& C' is quite opposed to the doctrine of ' last come-- first go ' or ' first come- last go ' and therefore, the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave /casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc ' for absorption along with the other eligible categories of temporary employees is not valid. Further. engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , Copy of which is marked as Ex.W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals weregiven more beneficial treatment in the matter ofarriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M 10 in this case. Those candidates under Ex . 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 7532

[PART II SEC. 3(ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further, though the Respondent/ Management has examined two witnesses , the deposition of management witnesses during the cross examination hadbecome apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence of Respondent/ Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under 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 . 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 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 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 duties continuously which is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ workmen as 'badlies' , casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex . M 10 wait list has not been prepared in accordance with principle ofseniority In the legal sense , since the selected candidates with longest service should have priority over those who joined the service letter and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and 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 MWI . Therefore , the termination of the Petitioner who was in regular service of the Respondent/Bank is arbitrary , mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18(3) settlement nor 12( 3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . 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 7533

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[भाग II-खण्ड 3 ( ii ) ]

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 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 niay 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 .

in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3 ) of the ID. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive. Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they. were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation were bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected . Furthermore , the said settlements were not questioned by anyunion and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 I LLJ 323 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 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 , mis- representation 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 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."

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive 7534

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[PART II-SEC. 3 ( ii) ]

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 ..

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 KeralaHigh Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Eventhough 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 f 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 VANSAGNATHAN 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 refererice 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 tine of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination inthis appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Government service in anexisting or a future vacancy . " In that case , pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number 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 pane! 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- fidemotive. Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF 13 , I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not ? But, I find that the settlement was validly entered into 7535

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

[भाग II खण्ड 3 ( ii ) ]

nullity. " " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in 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 SC 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 LD. 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, ifthe Petitioner has shown anything, the Respondent/Bank isready to establish the fact before this Tribunal that he has worked moredays than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/ Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with costs .

15.Learned Senior Advocate further argued that even

inrecent decision reported in 2006 4 SCC 1 SECRETARY , STATE OF KARNATAKA Vs. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain- not at arms length since he might havebeen 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 HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that "now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad - hoc / temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door (c) he was not eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation ofan ad- hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a- direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one. From this , the impugned directions must be held to be totally untenable and unsustainable . Thus , the Supreme Court set aside the orders ofLower Courts . He further relied on the decision reported in 1997 IISCC 1 ASHWANI KUMAR AND OTHERS Vs. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would 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 7536

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 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 a similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation, merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner.

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 entitledto 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 " itis not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS.S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of 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. Inview ofmy 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. )

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

K. JAYARAMAN , Presiding Officer [ भाग II-खण्ड 3 ( ii ) ]

Witnesses Examined :-

For the Petitioner WW1 Sri R. Kanagasabai 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 Хегоx 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 Wagės 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 .

25-03-97 Хегox 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 particulars of the Petitioner given by Kattumannar Kovil 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 Staff matters upto 31-12-95 .

06-03-97

W12

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

06-03-97

W13

Xerox copy of the call letter from Madurai ZonalOffice 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.

3725 GI/07-13

7537

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

Ex. No. Date

Description

W15 17-03-97 Xerox copy of the service particulars - J . Velmurugan.

26-03-97

W16

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

31-03-97

W17

Xerox copy of the appointment order to SriG , Pandi .

Feb.2005

W18

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

W19 13-02-95 Xerox copy of the Madurai Module Circular letter about Engaging temporary employees from the panel of waitlist .

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 the settlement between Respondent/Bank and All India Staff 1 Bank of India Staff Federation for implementation of norms-creation of parttime general attendants .

W23 07-02-06 Xerox copy of the local Head Office circular about Conversion of part time employees and redesignate them as general attendants .

W24 31-12-85 Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

For the Respondent/Management :-

Date

Ex. No.

Description

MI

Xeгox copy of the settlement .

17-11-87

M2

Xerox copy of the settlement .

16-07-88

M3

Xerox copy of the settlement .

27-10-88

M4

Xerox copy of the settlement .

09-01-91

M5

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 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.

7538

THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC . 3 ( ii) ]

the dispute on its file as CGID No. 223/99 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. 161/2004 . ६०

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

नई दिल्ली, 24 अगस्त, 2007 का.आ. 2698. 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 161/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/528/1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 24th August , 2007

"Whether the demand of the workman Shri T. Samarasam , wait list No. 254 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. 2698.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 161/ 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 24-08-2007.

[No. L- 12012/528/ 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. 161/2004 (Principal Labour Court CGID No. 223/99)

[Inthematter 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 . T. Smarasam

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative

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

AWARD

1. The Central Government , Ministry of Labour , vide OrderNo. L- 12012/ 528/98 - IR (B - I) dated 19-03-1999 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 Chidambaram branch from 14-11-1980 . 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. 542/87 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 Chidambaram branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 14-11-1980, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Chidambaram 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 requirci any more and he need not attend the office from 1-4-1997 .

7539 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

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 Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. tothe temporary workmen which amounts to violation of relevant provisions of circular. The Respondent/Bank engaged the Petitioner and extracted the same work either 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 .

i 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 questionof regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3) of I.D. Act in lieu of provisions of law, retrenchment and 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 17-11-1987, 16-7-1988,7-10-1988 , 9-1-1991 and 30-7-1996. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18( 3 ) ofI.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 254 in wait list ofZonal Office , Trichy . So far 212 wait listed temporary candidates, out of 652 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot turn around and claim appointment. Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement , employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category(C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered, As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemerited the voluntary retirement scheme and even the permanent: vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 254 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 7540

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

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.

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. 254 for restoring the wait list of temporary messengers in the Respondent/

[PART II-SEC. 3 ( ii )] Bank and consequential appointment thereupon as temporary messenger is justified?"

(ii) "To what relief the Petitioner is entitled ?" Point No. 1:

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for 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 . 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 .

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18 ( 1 ) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner. working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V - A of 7541 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers. and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted only for thebenefit of the workmen to whom Section 25F applies butfor all cases of retrenchment . Therefore , the application ofSection 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that on behalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issuedfrom time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further, a combined study of Ex . Ml and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking his future withthe settlements . Further , Clause 1 of Ex . MI deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of 'A, B& C' is quite opposed to the doctrine of ' last come- first go ' or ' first come last go ' and therefore , the categorization in Clause 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 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 MW 1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear 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/Bankby combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW I 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 . 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 7542

[PART II-SEC . 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all, though the Respondent/Bank has referred to voluntary retirement scheme. In the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Section 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days, since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONALBANKINGCORPORATION 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 .

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 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) 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 ofthe Respondent/Bank is arbitrary , mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex.M6which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ), Hyderabad , it is neither a 18 (3 ) settlement nor 12(3) settlement as claimed by the Respondent/ Bank which says only with regard to modification of Ex . MI toM4made in terms ofEx .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

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 [ भाग II-खण्ड 3 (ii) ]

7543

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

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 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 furtherrelied 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 thatthough the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list Number given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence, the Petitioner's contention against the reference made by the Government is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

regular appointment/ absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3 ) of the I.D. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bonafide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation were bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected . Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . VS. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that" in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . " Itfurther held that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements . But , in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration ." Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD . Vs.

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive 7544

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 ..

inthematter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the material before it , it has only on duty and that is to decide 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 beenheld that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court ." Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and 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 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 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 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 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 7545 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

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 '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 .

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 givenwithout reference to the existence of a vacancy . The direction in effect means that every ad - hoc/ temporary employee who has been continued for one year should be regularised even though : ( a) no vacancy is available for him which means creation of a vacancy; (b ) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door ; (c) he was not eligible and qualified for the post at the time of his appointment; ( d) his record 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 IISCC I ASHWANI KUMAR AND OTHERS Vs. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it 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

15. Learned Senior Advocate further argued that even inrecent decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA Vs. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities 3725GI/07-14 7546

[PART II-SEC . 3 (ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 , the Petitioners have made so many allegations with regard topreparation of wait list and also settlements entered into between the Respondent/Bank and Federation , at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the wait list . Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account of mala fide, misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

18. Further , the representative for the Petitioner contended that in a similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme 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 .

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 entitledto be absorbed in regular service or made permanent merely on the strength of such continuance , if theoriginal appointment was not made by following a due process of selection as envisaged by relevant rules .' Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS- LTD . and OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " itis not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Article 14 and 16 ofthe Constitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him 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 ."

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.

(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) .

K. JAYARAMAN, Presiding Officer 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation ofhis service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by [भाग II-खण्ड 3 (ii ) ]

Witnesses Examined :-

Forthe Petitioner WW1 Sri T. Samarasam WW2 Sri V. S. Ekambaram Forthe Respondent MW1 Sri C. Mariappan MW2 Sri T L. Selvaraj

Documents Marked :-

Ex .No. Date

Description

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

W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 .

W3 24-4-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 1-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-3-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-3-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97 .

W8 Nil Xerox copy of the instructions in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work .

W9 18-09-97 Хегох copy of the service certificate issued by Chidambaram branch .

W10 1980-70 Xerox copy of the service particulars issued to Petitioner .

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 Staffmatters upto 31-12-95 .

W13 06-03-97 Xerox copy of the call letter from Madurai zonal office For interview of Messengar 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.

7547

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

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 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 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 .

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 Хегоx copy of the settlement .

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

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

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

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil Xerox copy of the wait list of 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 .

[PART II-SEC . 3 (ii) ] 7548

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

नई दिल्ली, 24 अगस्त, 2007

the dispute on its file as CGID No. 195/99 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. 254/2004.

follows: 2. The Schedule mentioned in that order is as का.आ. 2699.-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 254/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/444/1998- आईआर( बी-1) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 24th August , 2007

"Whether the demand of the workman Shri V. Kuppan , wait list No. 614 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. 2699. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 254/ 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 24-08-2007.

[No. L- 12012/444/ 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. 254/2004

(Principal Labour Court CGID No. 195/99)

[Inthematter of the dispute for adjudication under clause(d) of sub- section ( 1 ) and sub - section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947), between the Management of State Bank of India and their workmen]

BETWEEN

: I Party/Petitioner

Sri .V. Kuppan

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram ,

Authorised Representative

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

AWARD

1. The Central Government , Ministry of Labour, vide Order No. L- 12012/444/ 98 - IR (B - I ) dated 10-03-1999 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 Mannadi branch from 02-06-81 . The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject - matter before Supreme Court in the form of Writ Petition filed by State BankEmployees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter , filed a copy of settlement under section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation andthe settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the . prescribed format through Branch Manager of the Mannadi branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But , they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 02-06-81 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in State Bank of India commercial 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.

7549 [ भाग II खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

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 bypaymentofpetty 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, 16-7-1988,7-10-1988 , 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. 614 in wait list ofZonal Office , Chennai . So far 357 wait listed temporary candidates , out of 144 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 andunder 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 614 he was not appointed: The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act , 1981 does not applyto Respondent/Bank and this Tribunal has 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 sehiority . 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 no jurisdiction to entertain such plea. It is not correct to [PART II SEC . 3 ( ii)] 7550

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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

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

Point No.1:

say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not 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 inpermanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in . the year 1985, the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of the workmen concernedand while the matter was pending in Writ Petition No. 542 (Civil ) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they furtherprayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement , the Petitioner contended that he was having been sponsored by Employment Exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent /Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait 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 :

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 (1) "Whether the demand of the Petitioner in Wait List No. 614 for restoring the wait list of temporary messengers in the Respondent/ 7551 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are 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 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 hisfuture with the settlements . Further, Clause 1 of Ex . MI deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies 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 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 MWI wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear thatthe 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with. daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment 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 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 . 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 [PART II-SEC . 3 (ii ) ] 7552

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Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's 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.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 BANKINGCORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40to 50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo) of the I.D. Act, 1947. Though the Petitioner's. work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ workmen as 'badlies' , casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal .' Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2(e) 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 ofthe Respondent/Bank is arbitrary , mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad, it is neither a 18 (3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/ Bankwhich says only with regard to modification of Ex . MI toM4made in terms ofEx . M6. Though the Respondent/Ba 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 anybearing in the case of the Petitioner. Further , though the 7553 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

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 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 fairand reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list 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 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 bonafide and aremade with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation 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 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 andreceived terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union willbe binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same . To that extent, it departs from the ordinary law ofcontracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . " Itfurther held that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations, a settlement in the course of collective . bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD. Vs.

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between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS ' UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference , if points of difference are discernible from the material before it, it has only on duty and that is to. decide 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 , butthatdoes 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 AJR 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 retrenchedfrom 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 Courthas 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 accordingto their comparative merits . In which , the Supreme Court has held that" in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory ." He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion thatthe 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 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 [भाग II-खण्ड 3 ( ii ) ]

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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 of Respondent/Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with costs.

rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . VS. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad -hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad-hoc/ temporary employee who has been continued for one year should be regularised even though: (a) no vacancy is available for him which means creation of a vacancy ; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door ; (c) he was not eligible and qualified for the post at the time of his appointment ; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of an ad- hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of 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 IISCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad -hoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation 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

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 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 [PART II SEC . 3( ii)] THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

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settlements , the Petitioners cannot now question either thepreparation ofwait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention of the learned. counsel for 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 of the Respondent/Bank.

18. Further , the representative for the Petitioner contended that in a similar case , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled 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 240days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each casemust be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as allegedby him . Therefore, I find this point against the Petitioner .

and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules. " Further , in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation of an employee upon the expiry of purported periodofprobation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR , the Supreme Court has held that " it is not disputed that the appointment 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 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 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 [ भाग II-खण्ड 3 ( ii ) ]

7557

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

Witnesses Examined:

For the Petitioner WW I Sri V. Kuppan WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri C. Ramalingam Documents Marked :-

Ex. No. Date

Description

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

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 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 Nil

Xerox copy of the service certificate issued by Mannadi branch .

W10 30-09-93 Xerox copy of the letter from Petitioner to Chief Manager (Accounts ) of Respondent/Bank.

W11 06-12-94 Xerox copy of the service certificate issued by Arumbakkam branch .

W12 30-10-95 Xerox copy of the service certificate issued by Commercial branch .

W13 06-02-97 Xerox copy of the service certificate issued by Arumbakkam branch.

W14 12-02-98 Xerox copy of the service certificate issuedby Commercial branch .

W15 Nil Xerox copy of the administrative guidelines in Reference Book on staff matters issued by Repondent/Bank regarding recruitment to subordinate cadre& service conditions .

W16 Nil

Xerox copy of the Reference Book on Staff matters Vol . III consolidated 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 ofthe call letter from Madurai post-K. Subburaj . zonal office for interview of messenger 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 of part 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 waitlist 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 Head Office circular No. 28 regarding Norms for sancition of messenger staff.

W26 09-07-92 Xerox copy of the minutes of the BipartiteMeeting .

W27 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-Creation of part time general attendants .

07-02-06

W28

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

W29 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

For the Respondent/Management :-

Ex. No. Date

Description

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

M2

Xerox copy of the settlement .

16-07-88

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 Хегоx copy of the order in W.P. No.7872/91 .

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

M9 10-07-99 Xerox copy ofthe order of Supreme Court in SLP No. 3082/99.

M10 Nil

Xerox copy of the wait list of Chennai Module.

M11 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

[PART II-SEC . 3 ( ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

7558

नई दिल्ली, 24 अगस्त, 2007

the dispute on its file as CGID No. 196/99 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. 255/2004.

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

का.आ. 2700.-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 255/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/441 / 1998 - आईआर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

NewDelhi , the 24th August, 2007

"Whether the demand of the workman Shri G. Easu , wait list No. 425 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. 2700. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 255/ 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 24-08-2007.

[No. L- 12012/441 / 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. 255/2004 (Principal Labour Court CGID No. 196/99)

[Inthe matter of the dispute for adjudication under clause( d) ofsub - section ( 1 ) and sub- section 2 (A ) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947), between the Management of State Bank of India and their workmen]

BETWEEN

Sri . G. Easu

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V.S. Ekambaram,

Authorised Representative

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

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bankof India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Janapanchattiram branch from 15-04-83. The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' 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 Janapanchatiram 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 15-04-83 , the Petitioner has been working as a temporary messenger and sometimes performingwork in other branches also . While working on temporary basis in L.H.O. , Chennai branch , another advertisement by the Respondent /Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required anymore and he need not attend the office from 1-4-1997 .

1. The Central Government, Ministry ofLabour , vide Order No. L- 12012/441 /98 - IR (B - I) dated 10-03-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken 7559 [भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

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 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 Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18(3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was waitlisted as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those

employees who are claiming permanent absorption and 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 forpermanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 425 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 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 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 425 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 [PART II SEC . 3 (ii) ] 7560

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines /circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in. the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent/Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour .

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

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 (1) "Whether the demand of the Petitioner in Wait List No. 425 for restoring the wait list of temporary messengers in the Respondent / 7561

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

[भाग II-खण्ड 3( ii) ]

MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement. Further, according to MW1 wait list under Ex . M10 was prepared on 2-5-92but 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 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 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 bytheRespondent/Bank by combing equals with unequals. It is further contended on behalf of the Petitioner that as perdeposition of MWI wait list under Ex.M10 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 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 atthe timeofconciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year2003 theRespondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner 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 f the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V-A of the I.D. Act providing for retrenchment is not enacted only forthebenefit ofthe workmen to whom Section 25F applies butfor 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 ofthe settlements on absorption and which are statutory in character. Further , a combined study of Ex.Ml and the averments of MWI and MW2 and their testimonies during the cross -examination will clearly show how the bank has givenaraw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 ofEx . M1 deals with categorization of retrenched temporary employees into 'A, B and C ' , but this categorization of 'A, B & C' is quite opposed to the doctrine of' last come-first go' or ' first come- last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex.MI provides an opportunity to persons who were engage 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 ofarriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex.W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case. Those candidates under Ex . 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 aremarked as Ex . MI , M3 and M4 respectively: But, when

3725 Gl /07-16 7562

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC . 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 MS . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year2001 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 aperiod of 12 calendar months . He also relied on the rulings reported in 1985.JI LEJ 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 .

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 oftemporary employees , the expression that they were engaged in leave vacancy was used as a device to take thern out of the principal clause 2 (00) of the I.D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ workmen as 'badlies' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex. M10 which has been drawn up is 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 clause2(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 howhe 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 Resporident/ Bankwhich says only with regard to modification of Ex . Mlto M4made 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, 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 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 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

7563

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 categoryhas 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 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 fairand reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner . Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list Number given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified? The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated inservice with full back wages etc. Hence , the Petitioner's contention against the reference made by the Government is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

their engagement was not authorised . Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive. Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation werebona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by 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. 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 inthematter oftenability of a reference and he relied on the [PART II SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

7564

is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala HighCourt 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 inthe wording of reference , subjecting the poor workmanto hardship involved in moving the machinery again." It further held that "the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits ." Further, he argued that the Tribunal has got power to go into the 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 PAPERMILLS 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 ofparties . " He also relied on the rulings reported in 1998 LAB IC 1507 А. SAMBANTHAN VS. PRESIDING OFFICER, LABQUR COURT, MADRAS , wherein it has been held that " ithas 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 inExpress Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. TheLabour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bankandtherefore, this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitledto 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 Petitloner 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 SupremeupremeCoCourt has held that " the only question which falls for determination inthis appeal is whether a candidate whose name appears inthe 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 ofthe impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number of bottom 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 informedthe 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 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 permanerit 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- fidemotive . Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF 13. I find some force in the contention of the representative for the Petitioner. Therefore, I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not?But, I find that the settlement was validly entered into betweenthe Respondent/Bank and Federation and since it 7565 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929.

HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS 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 aretemporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , their disengagement is not arbitrary ." He further relied on the rulings reported in 1994 3 LLJ (Supp) 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 .

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 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

15.Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad -hoc employees who by the very nature of their appointment , do not acquire any right. ' Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison, the constitutional scheme of appointment , perpetuate il legalities and to take the view that a person who has temporarily or 7566

[PART II-SEC . 3 (ii )] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 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 theRespondent . 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 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 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 thePetitioner .

casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible. " Further , the Supreme Court while layingdown the law , has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons, the same would not confer any right on the appointee .......It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitledto 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 " itis not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changés 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 pointto be decided in this case is to what relief the Petitioner is entitled?

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him . No Costs.

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 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 [भाग II-खण्ड 3 ( ii) ]

7567

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

Witnesses Examined:

W16 06-03-97

Forthe Petitioner WW1 SriG. Easu WW2 Sri V. S. Ekambaram

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

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

MW1 Sri C. Mariappan MW2 Sri C. Ramalingam

Documents Marked:-

W-18 26-03-97

Ex. No. Date

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

Description

W19

W1

31-03-97

1-08-88

Xerox copy of the appointment order to SriG.Pandi .

Хегох copy of the paper publication in daily Thanthi based on Ex . M1 .

W20

W2

Feb. 2005

20-4-88

Xerox copy of the pay slip of T.Sekar forthe month of February , 2005 wait list No. 395 of Madurai Circle Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx. MI .

W21 13-02-95

W3 24-4-91

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

W22 09-11-92

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

W4 1-05-91

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

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

W23 09-07-92

W5 20-08-91

Xerox copy of the minutes of the Bipartitemeeting.

W24 09-07-92

Хегох 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 .

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 W7 25-3-97

W25 07-02-06 Xerox copy of the local Head office circular about Conversion of part time employees and redesignate them as general attendants .

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

W26 31-12-86

W8 Nil

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

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

For the Respondent/Management : -

W9 04-08-88

Ex. No. Date

Description

Xerox copy of the service certification issued by Janapanchatiram branch.

17-11-87 MI

Xerox copy of the settlement .

W10 05-02-97

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

Xerox copy of the service certificate issued by Royapuram branch.

M3 27-10-88 Xerox copy of the settlement.

W11 13-03-97

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

Xerox copy of the service certificate issued by LHO , Chennai branch .

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

W12 Nil

M6 09-06-95 Хегох copy of the minutes of conciliation proceedings .

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

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

M8 15-05-98

W13 Nil

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

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

M9 10-07-99

W14 06-03-97

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

Nil

M10

Xerox copy ofthe call letter fromMadurai zonal office for interview of messenger post-V. Muralikannan

Xerox copy of the wait list of Chennai Module .

W15 06-03-97

M11 25-10-99

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

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 [PART II-SEC . 3 ( ii ) ] THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

7568

नई दिल्ली , 24 अगस्त, 2007

thedispute on its file as CGID No. 194/99 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. 253/2004.

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

का.आ. 2701.-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 एवं श्रम न्यायालय , चेन्नई के पंचाट (संदर्भ संख्या 253/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/437/1998- आईआर( बी-I ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 24th August, 2007

"Whether the demand of the workman Shr V. Jayaseelam, wait list No. 743 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. 2701. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 253/ 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 24-08-2007.

[No. L- 12012/437/ 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. 253/2004

(Principal Labour Court CGID No. 194/99)

[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) , betweenthe Management of State Bank of India and their workmen]

BETWEEN

: I Party/Petitioner

Sri .V. Jayaseelam

AND

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

APPEARANCE

Forthe Petitioner

: Sri V. S. Ekambaram , Authorised Representative

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

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at IIT Chennai branch from 12-03-81 . The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before. Supreme Court in the form of Writ Petition filed by State BankEmployees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter , filed a copy of settlement under Section 18( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement 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 IIT Chennai branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointment. But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee. From 12-03-81 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Guindy branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-1997 . Hence , the 1. The Central Government, Ministry ofLabour, vide OrderNo. L- 12012/437/98- IR (B - I) dated 10-03-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and said Labour Court has taken 7569 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 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 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 foradjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of 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 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. 737 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 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 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 737 he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not applyto Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of 3725 Gl/07-17 [PART II-SEC . 3 ( ії ) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

7570

Petitioner was verified before the Petitioner was engaged .

thereupon as temporary messenger is justified?"

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

Point No. 1:

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

8. In this case , on behalf of the Petitioner it is contended 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 inpermanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in . the year 1985, the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedworkmen with ulterior motive . The Respondent/Bar 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 :

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 (1) "Whether the demand of the Petitioner in Wait List No. 743 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment 、 [ भाग II- खण्ड 3( ii) ]

7571

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

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 ofretrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that on behalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issuedfrom time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex.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 quité opposed to the doctrine of ' last come-first go' or ' first come- last go ' and therefore , the categorization inClause 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 círculars/ 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 is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. MI , M3 and M4 respectively . But , when

MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except his bald statement. Further, according to MW1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances . as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 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 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 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 been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No.11932/91 in W.P. No.7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex . M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex . MI was not produced atthe time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner [PART II-SEC. 3 ( ii ) ] 7572

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

deposition of management witnesses during the cross examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have 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 40to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service. Hence , the question of regular appointment/absorption does not arise at all and 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 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 ofthe Respondent/Bank is arbitrary , mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . " Though the Respondent/Bank has produced Ex .M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad, it is neither a 18 (3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/ Bankwhich says only with regard to modification of Ex .Ml to M4made 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, they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the [ भाग II-खण्ड 3 (ii ) ]

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भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्रं 31 , 1929

Supreme Court has held that " settlements are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18( 3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even incase of the first category , if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also. " He further relied on the . rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being 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 Governemt may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , leamed counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list Number given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Government is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of 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 bythe 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 willbe binding on all workmen of the establishment , even thosewhobelong 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 7574

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

[PART II-SEC. 3 (ii) ]

is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

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 theorder of reference , if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits." Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has beenheldthat " it has been repeatedly held that the Labour Court should not attemptto consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported 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 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 .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Government service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments 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 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 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 7575

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 3 (ii) ]

HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS 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 .

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 ofad- 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 wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employeės 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 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 7576

[PART II-SEC. 3( ii) ] THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 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 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 240days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case mustbe considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore, I find this point against the Petitioner .

casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while layingdown the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS 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 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 serviceby that itself would not confer any legal right upon himtoberegularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position, as noticed hereinbefore ."

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him . No Costs .

21. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January , 2007) .

K. JAYARAMAN, Presiding Officer 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned inthe settlements which were subsequently amended by settlements , the Petitioners cannot now question either [ भाग II-खण्ड 3 ( ii) ]

Witnesses Examined:-

For the Petitioner WWI Sri C. Jayaseelan WW2 Sri V. S. Ekambaram For the Respondent

MW2 Sri C. Ramalingam MW 1 Sri C. Mariappan

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

W4 1-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-3-97 Xerox copy of the circular letter ofZonal 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 08-02-94 Xerox copy of the service certification issued by Guindy branch .

16-02-95

W10

Xerox copy of the service certificate issued by Guindy branch .

18-02-96

Wil

Xerox copy of the service certificate issued by Guindy branch .

30-1-96

W12

Xerox copy of the service certificate issued by Guindy branch .

10-04-97

W13

Xerox copy of the service certificate issued by Guindy branch .

W14 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Repondent/Bank regarding recruitment to subordinate cadre & service conditions .

W15 Nil

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

06-03-97

W16

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

06-03-97

W17

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

3725 Gl/07-18

7577

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

06-03-97

W18

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

17-03-97

W19

Xerox copy of the service particulars- J. Velmurugan

26-03-97

W20

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

31-03-97

W21

Xerox copy of the appointment order to SriG. Pandi .

Feb. 2005

W22

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

13-02-95

W23

Xerox copy of the Madurai Module Circular letter about Engaging temporary employees from the panel of wait list. 09-11-92

W24

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

09-07-92

W25

Xerox copy of the minutes of the Bipartitemeeting .

09-07-92

W26

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

7-2-06

W27

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

31-12-85

W28

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

Xerox copy of the settlement. 17-11-87

M2

Xerox copy of the settlement .

16-07-88

M3

Xerox copy of the settlement .

27-10-88

M4

Xerox copy of the settlement .

09-01-91

M5

Хегоx copy of the settlement .

30-07-96

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

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

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

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

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

25-10-99

M11

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

7578

[PART II SEC . 3 ( ii ) ] THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

नई दिल्ली, 24 अगस्त, 2007

their claim statement and Counter Statement respectively . After the constitution of this CGIT cum labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I. D. No. 158/2004 .

follows: 2. The Schedule mentioned in that order is as का.आ. 2702.-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 158/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/234/1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

NewDelhi , the 24th August , 2007

"Whether the demand of the workman Shri S. Srinviasan, wait list No. 567 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 he said is he entitled?"

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

S.O. 2702. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 158 / 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 24-08-2007.

[No. L- 12012/234/ 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. 158/2004 (Principal Labour Court CGID No. 217/99)

[Inthe matter of the dispute for adjudication under clause(d) of sub- section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen ]

BETWEEN

Sri . S. Srinivasan

: I Party/Petitioner

AND

The Assistant General Manager , : II Party/Management StateBank of India , Region - I , Z.O. , Tiruchirapalli.

APPEARANCE

Forthe Petitioner

: Sri V. S. Ekambaram, Authorised Representative

For the Management : Mr. F. B. Benjamin George , Advocate

AWARD

1. The Central Government, Ministry ofLabour, vide Order No. L- 12012/234/98 - IR (B - I) dated 22-03-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 217/99 and issued notices to both parties . Both sides entered appearance and filed

The Petitioner was sponsored by Employment Exchange for the post of sub- staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination. He was appointed on temporary basis at Karur Main branch from 08-08-1970. 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 Karur 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 08-08-1970, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Udagamandalam branch , another advertisement by the Respondent /Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 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 , [ भाग II-खण्ड 3 (ii) ]

7579

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

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 settlementby which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to 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 elief of regular employment in Respondent/Bank with all attendant benefits .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18( 1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was waitlisted as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency , the Respondent/ Bank engaged 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. 567 in wait list of Zonal Office , Trichy . So far 212 waitlisted temporary employees were permanently appointed by Respondent/ Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of. settlements drawn as per retrenchment provisions referred to above, cannot turn around and claim appointment. Such ofthose temporary employees who were appointed were engaged for more number of days and hence, they were appointed . Under the settlement , employees were categorised as A , B 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 biock of36 calendar months and under category ( C ) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the waitlist and it was also agreed that wait list was to lapse in December , 1991 and the cut offdate was extended up to 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no 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 567 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen ) Act , 1981 does not apply to Respondent/Bank and this Tribunal has nojurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to [PART II-SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7580

(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 inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in. the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent/Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18 (3 ) of the Act. As per recruitment rulesof the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank . Even in the Writ Petition before the High Court in W.P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

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

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 (1) "Whether the demand of the Petitioner in Wait List No. 567for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?" 7581 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

applicable to the Petitioners who are retrenched messengers andare 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 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--- firstgo'or ' firstcome-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 wait list for each module as per Ex . M 10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex . M10 was prepared , but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. Ml , M3 and M4 respectively . But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras

circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement. Further , according to MW 1 wait list under Ex . M10 was prepared on 2-5-92but. there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with. daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 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 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 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.11932/9.1 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 7582

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 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 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 anaward 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 of permanent workmen is illegal . " Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up.is contrary to law and also bad in law . Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2(e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent/Bank is arbitrary , mala fide and illegal and the Respondent/Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad , it is neither a 18( 3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/ Bank which says only with regard to modification of Ex. Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court 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 , 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 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 [ भाग II-खण्ड 3 ( ii) ]

7583

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 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 will be binding.on all workmen of the establishment . Even in case of the first category , if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also . " He further relied on the . rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bonafide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be 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 .

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 IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS 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 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 joband received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that" in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion , the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that" therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same . To that extent , it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority 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 [PART II-SEC . 3 ( ii ) ] 7584

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

Bank, I find the Petitioner is not entitled to question the settlement .

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 reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but thatdoes not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER , LABOUR COURT , MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions, the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether thePetitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS Vs. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Government service in an existing or a future vacancy . " In that case, pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that itwas a 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 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 contendedthat since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala- fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS 13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not?But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ 7585

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 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 thathis juniors were made permanent by the Respondent/ Bank. Any how , if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy . The direction in effect means that every ad-hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy ; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door ; (c) he was not eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad- hoc employee for one year, it cannot be presumed that there is need for regular post. Such a 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 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 IISCC 1 ASHWANI KUMAR AND OTHERS.VS . STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned . But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation 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

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 Secretary, State of Karnataka Vs. Uma Devi , the Supreme Court has held thatmerely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not 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 ofad- 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 3725 G1/07-19 7586

[PART II-SEC . 3 ( ii)] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention of the learned counsel for theRespondent . Though in the Claim Statement , the Petitioners have made so many allegations with regard 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 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.

permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same beingbeing aa 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 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 ."

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 .

(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 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 thepreparationof wait list or number allotted to them . Under

K. JAYARAMAN, Presiding Officer [ भाग II-खण्ड 3( ii) ]

7587

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

Witnesses Examined:

W15 17-03-97 Xerox copy of the service particulars- J. Velmurugan

For the Petitioner WW1 Sri S. Srinivasan WW2 Sri V. S. Ekambaram

W16 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi For the Respondent MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj

W17 31-03-97 Xerox copy of the appointment order to SriG. Pandi

Documents Marked :-

W18

Ex. No. Date

Description

W1

Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month of February , 2005 wait list No. 395 of Madurai Circle 1-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex . M1 .

W19 13-02-95

W2 20-4-88

Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation ofEx. M1 .

W3 24-4-91

W20 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff

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

W21 09-07-92 Xerox copy of the minutes of the Bipartite meeting

W4 1-05-91

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

Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants W6 15-3-97 Xerox copy of the circular letter of zonal : Office , Chennai about filling up of vacancies of messenger posts .

W7

W23 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants

W24 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre 25-3-97Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

For the Respondent/Management : ----

Ex . No. Date

Description

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

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.

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

W9

M3

02-02-84

27-10-88 Xerox copy of the settlement .

Xerox copy of the service particulars of the Petitioner given by Karur Branch

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

W10 Nil

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

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

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

M7 28-05-91

د W11 Nil

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

M8

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

W12 06-03-97

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

W13 06-03-97

M10 Nil

Xerox copy of the call letter from Madurai zonal office for interview of messenger postK.Subburaj

Xerox copy of the wait list of Trichy Module.

W14 06-03-97

M11 25-10-99

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

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

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

7588

नई दिल्ली , 24 अगस्त, 2007

their claim statement and Counter Statement respectively. After the constitution of this CGIT cum labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I. D. No. 157/2004.

follows: 2. The Schedule mentioned in that order is as का.आ. 2703.-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 157/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/479/1998- आईआर( बी- I ) ] अजय कुमार , डेस्क अधिकारी

"Whether the demand of the workman Shri M. Tamilmani , wait list No. 489 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled?"

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

New Delhi , the 24th August , 2007 S.O. 2703. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 157/ 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 24-08-2007 .

[No. L- 12012/479/ 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. 157/2004 (Principal Labour Court CGID No. 202/99)

[In the matter of the dispute for adjudication under clause (d) of sub - section ( 1 ) and sub - section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen ]

BETWEEN

Sri . M. Tamilmani

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative

For the Management : Mr. K. S. Sundar ,

Advocates

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Asaveerankudikadu branch from 1985. The Petitioner was orally informed that hisservices were no niore 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. 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. the year 1985 the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Asaveerankudikadu 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 hisnon - employment. Since the conciliation ended in failure , 1. The Central Government , Ministry of Labour , vide Order No. L - 12012/479 /98 - IR (B - I) dated 10-03-1999 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. 202/99 and issued notices to both parties . Both sides entered appearance and filed 7589 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र सितम्बर 22, 2007/भाद्र 31 , 1929

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 , theRespondent'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 .

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. 489 in wait list of Zonal 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 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 652 wait listed candidates , 489 temporary employees were appointed and since the Petitioner was wait listed at 489 , 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence, the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlementdrawn under provisions of Sections 18 ( 1 ) and 18 (3) of J.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 . Dueto the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those, employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff 7590

[PART II SEC . 3 (ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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

Point No. 1 :

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 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 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 WritPetition 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 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 elass 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. 489 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 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 Sectiosn 25G and 25H are very much [ भाग II-खण्ड 3 ( ii ) ]

7591

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 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 thebenefit 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 issuedfrom time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex.Ml and the averments of 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 of retrenched temporary employees into ' A, B and C ' , but this categorization of ' A, B & C' , is quite opposed to the doctrine of ' last come- first go ' or ' first come last go ' and therefore , the categorization in Clause I is illegal . Clause 1 ( a ) of Ex . 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 todo 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 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 MWI wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment ofMWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW 1 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.M10 namely wait list is notinconformity 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 [PART II-SEC. 3 (ii )] 7592

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 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 Section 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act. It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds. have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL, BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed . In such circumstances , this Tribunal has to pass anaward in their favour .

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 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/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 Ex . Ml to M4 made in terms of Ex . M6 . Though theRespondent/Bank produced Ex. M7 and M1 1 interim orders passedbyHigh Court ofMadras in WMP No.11932/91 in W.P. No.7872/9 ) 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 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 7593 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 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 in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also . " He further relied on the , rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bonafide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlernent , since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended thatthough the reference made in this case and other connected disputes is ' whether the dernand of the workman with wait list Number given for restoring the wait list of temporary messengers in the establishrnent 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 hasto 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 iscontendedthat 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 accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3 ) of the L.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 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 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 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

3725 G1/ 07-20 [PART II-SEC. 3( ii) ] 7594

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 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 , ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein 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 consitler the order of reference in a fair and reasonable manner , though the order ofreference 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 ofvacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that itwas a yearly panel expiring on 6-2-98 , we are ofthe opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that"candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contendedthat since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala- fide motive. Under such circumstances , after the expiry of the date 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 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 .

7595

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[भाग II-खण्ड 3 ( ii ) ]

vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that "they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp. ) 754 wherein the Rajasthan High Court has held that "Under Section 25G of the 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 .

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 ofad- 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 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- hoe 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 7596

[PART II -SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules ." Further, in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD . AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "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 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 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 , 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 ofthe Respondent/Bank.

18. Further, the representative for the Petitioner contended that in a similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief .

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation, merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled toclaim regularisation or reinstatement in the Respondent/ Bank as alleged by him. Therefore, I find this point against the Petitioner .

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him. No costs .

21. Thus, the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January , 2007) .

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Forthe Petitioner

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy er 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 ,

WW1 Sri M. Tamilmani WW2 Sri V. S. Ekambaram Forthe Respondent MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj [ भाग II-खण्ड 3 ( ii) ]

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 Хегох copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx .MI .

W3 244-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 1-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4.

W5 20-08-91 Хегох 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 ofZonal 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 Nil

Xerox copy of the service certificate issued by Asaveerankudikadu branch W10 05-07-95 Xerox copy of the service certificate issued by Asaveerankudikadu branch W11 1993-97 Xerox copy of the service certificate issued by Asaveerankudikadu branch 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 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

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

7597 W17 17-03-97 Xerox copy of the service particulars- J. Velmurugan

W18 26-03-97 Xerox copy of the letter advising selection of part 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 ofFebruary , 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 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 circular about Appointment of temporary employees in subordinate cadre

For the Respondent/Management : --

Ex. No. Date

Description

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

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

M3 27-10-88 Хегox copy of the settlement .

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

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

M6 09-06-95 Xeгox 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 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.

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

7598

नईदिल्ली , 24अगस्त, 2007

Labour Court , Chennai and the said Labour Court has taken thedispute on its file as CGID No. 192/99 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. 252/2004.

का.आ. 2704. 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 252/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/448/ 1998- आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

NewDelhi , the 24th August, 2007

"Whether the demand of the workman Shri D. Mani, wait list No. 361 for restoring the wait listoftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled?"

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

S.O. 2704.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 252/ 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- 12012/448/1998 - 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. 252/2004

[Principal Labour Court CGID No. 192/99]

[Inthematter 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 D. Mani

: I Party/Petitioner

AND

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

APPEARANCE

Forthe Petitioner

: Sri V. S. Ekambaram , Authorised Representative.

Forthe Management : M/s . K. Veeramani , Advocates

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Magantharayapuram branch from 27-11-81 . 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 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, theRespondent/Bank broughtto the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Magantharayapuram branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But , they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 27-11-81 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Edyanchavadi . branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-1997 that his services are not required any more and he need not attend the office from 1. The Central Government , Ministry of Labour, vide Order No. L- 12012/448/ 98 - IR (B - I) dated 12-03-1999 has referred this dispute earlier to the Tamil Nadu Principal 7599

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

[भाग II-खण्ड 3(ii) ]

1-4-97. Hence , the Petitioner raised a dispute with regardto his non- employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days 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 Govt . for adjudicationby 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 17-11-1987,16-07-1988, 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. 361 in waitlist ofZonal Office , Chennai . So far 357 wait listed temporary candidates , out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement, employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; ( B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list wasto 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 361 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/ Bank and this Tribunal has nojurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was [PART II-SEC. 3 (ii)] 7600

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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

Point No. 1 :

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of the workmen concemed andwhile the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they furtherprayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence , the Petitioner prays that an award may be passed in his favour .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of IndiaStaff Federation were under Section 18 ( 1 ) of the Act and not under Section 18(3 ) of the Act. As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights ofthe Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

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

(1) "Whether the demand of the Petitioner in Wait List No. 361 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 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 7601

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

[भाग II-खण्ड 3 (ii) ]

Petitioners who are retrenched messengers and are eligible tobe reinstated . Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted only for the benefit of the 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 forappointment is untenable . It is further contended that on behalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex . Ml and the averments of MW1 and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come first go ' or ' first come- last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies of messengers , farashes , cash coolies, water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex .W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M 10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based onthe settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively: But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non-

inclusion except his bald statement . Further , according to MW1 wait list under Ex. M10 was prepared on 2-5-92but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement 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 . Itisfurther contended on behalf of the Petitioner that as perdeposition of MW 1 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 ofEx.M2 and non- preparation of separate panels amounts to violation of circular . Secondly, it has not beenprepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released/published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/ Bank to release the list of successful candidates pursuant to the first advertisement published in "The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put inby 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. 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 3725 G1 /07-21 7602

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 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 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 retrenchinent 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 themhave 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 .

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. TheRespondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though 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 ) . settlementas 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 reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the I.D. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed 7603 [भाग II-खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

application as it will be binding on all workmen of the establishment. Even in case of the first category , if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account 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 umber 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/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further , he relied on therulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the 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 ofthe establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law ofcontracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations 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 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

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that "mere wording ofreference is not decisive in the matter of tenability ofa reference. Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the material befor it, it hing on duty and that is to decide thepoints on merits and not to find out some technical defects in the wording of reference subjecting the poor [PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

7604

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 . 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/ 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 in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that itwas 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 theRespondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , 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 beregularised , we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad - hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy ; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time 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.VIDEESH wherein the Supreme Court has 7605 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 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 retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how , if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post at the time of his appointment ; (d ) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of an ad -hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one. From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of Lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad-hoc basis against an available vacancy which is already sanctioned . But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility . It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees , therefore , remained a nullity . " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption in the Respondent/Bank. Further, he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OF BIHAR AND ORS. wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY , STATE OF KARNATAKA Vs. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitledto be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right. " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment. He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But onthat ground alone , it would not be appropriate tojettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . Bydoing 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 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 7606

[PART II-SEC . 3 ( ii)] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

settlement nor the number allotted to each individual in the waitlist. Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide , misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

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

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 "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 CORPORATIONVS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself 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 . "

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 reliefthe Petitioner is entitled?

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him. No Costs .

21. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January , 2007. )

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

Witnessés Examined:-

Forthe Petitioner WWI Sri D. Mani WW2 Sri V. S. Ekambaram 17. I find much force in the contention of the learned counsel for the Respondent. Though in the Claim Statement , the Petitioners have made so many allegations withregard 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

For the Respondent MW1 Sri C. Mariappan MW2 Sri C. Ramalingam [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 ofEx .M1 .

W3 24-04-91

1

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 20-03-82 Xerox copy of the service certificate issued by Bhel Project, Mukundaraya- puramBranch.

W10 20-08-83 Xerox copy of the termination notice issued by Edyanchavadi Branch .

W11 Nil

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

W13 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V . Muralikannan .

W14 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W15 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post--J. Velmurugan.

7607

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

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

W17 26-03-97 Хегох 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 ofMadurai Circle .

W20 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

W21 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

W22 09-07-92 Xerox copy of the minutes of 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 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 .

31-12-85

W25

Xerox copy of the local Head Office circular aboutAppointment 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 Хегоx copy of the minutes of conciliation proceedings.

M7 28-5-91 Хегох 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 Хегоx copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil Xerox copy of the wait list ofChennai Module.

25-10-99

M11

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

[PART II-SEC . 3 (ii ) ] 7608

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

नई दिल्ली, 24 अगस्त, 2007

Labour Court , Chennai and the said Labour Court has taken thedispute on its file as CGID No. 191/99 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. 251/2004.

का.आ. 2705.-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 251/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/449/ 1998- आईआर( बी -1 ) ]

अजय कुमार , डेस्क अधिकारी

New Delhi , the 24th August, 2007

"Whether the demand of the workman Shri A. Krishnamoorthy , wait list No. 695 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so , to what relief the said workman is entitled ?"

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

S.O. 2705.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 251 / 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- 12012/449/ 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. 251/2004

[Principal Labour Court CGID No. 191/99]

[In the 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

: I Party/Petitioner

Sri A. Krishnamoorthy

AND

The Assistant General Manager , : IParty/Management StateBank of India , Z.O. , Chennai .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative .

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

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Santhavasal branch from 02-01-78 . 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 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 to join at the branch where he initially worked as a class IV employee . From 02-01-78 , the Petitioner has been working as a temporary messenger and some times 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 on 31-3-1997 that his services are not required any more and he need not attend the office from The Central Government, Ministry of Labour , vide Order No. L- 12012 /449/98 - IR (B - I) dated 12-03-1999 has referred this dispute earlier to the Tamil Nadu Principal 7609

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[ भाग II-खण्ड 3 ( ii) ]

1-4-97 . Hence , the Petitioner raised a dispute with regardto his non- employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days 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 theconciliation officer . Therefore , the Respondent's action innot absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing 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 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. 690 in waitlist 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 settlementsdrawn 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 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 690, he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent / Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise. The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in . seniority. Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff

3725 G1/07-22 7610

[PART II-SEC. 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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

5. In the additional claim statement , the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour.

6. Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment 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. 695 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 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 .

9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees intheRespondent/Bank under the guidelines and circulars issued by the Respondent/Bank 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 haveinvoked 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 7611 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 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 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 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 andchance. Further, as per instructions in Ex .W2 four types of waiting lists have to be prepared. But the Respondent/ Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case. Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively . But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non-

inclusion except his bald statement . Further, according to MWI wait list under Ex.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/Bankby combing equals with unequals . Itis further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex.M10 comprises of both messengerial and non-messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore, both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter 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 ofEx.M2 and non -preparation of separate panels amounts to violation of circular . Secondly , it has not beenprepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in 'The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank producedthewait 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 7612

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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 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 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 reportedto 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 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.

engaged in leave vacancy was used as a device to take them out of the principal clause 2 (00) of the I.D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated, Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.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 documentto show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also forthe averment of 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 reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the ID . Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and aremade with ulterior motive . Further, they have concealed [ भाग II-खण्ड 3 ( ii) ]

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भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

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 .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt. is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and is binding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questionedby 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 TRANSPORTCORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations ofmala fides, fraud or even corruption or other inducements . But, in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 К.С.Р. LTD. Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18( 1 ) of the 1.D. Act and ( ii) those arrived at in the course of conciliation proceedings under section 18( 3) . A settlement of the first category has limited application and binds merely parties to it and settlement ofthe second category made with a recognised majority union has extended

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discerniblefrom the material before it, it has only on duty and that is to decide the points on merits and not tofind out some technical defects in the wording of reference, subjecting the poor [PART II-SEC. 3 ( ii)] 7614

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 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 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 LAB IC 1664 VAN SAGNATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings 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 .

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 andapolicy 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 SYNDICATEBANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that"by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that theRespondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore, the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent /Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that "now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad-hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling 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 [ भाग II-खण्ड 3 (ii) ]

7615

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 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 retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been. made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

for applications which means he had entered by a back door; ( c) he was not eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders : None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad - hoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of 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 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 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 inrecent decision reported in 2006 4 SCC 1 SECRETARY , STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts ań 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 [PART II SEC . 3( ii ) ] 7616

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

settlement nor the number allotted to each individual in the wait list. Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation, fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

18. Further , the representative for the Petitioner contended that in similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence, the Petitioners are entitled forthe same relief.

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 "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 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 . "

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled toclaim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore, I find this point against the Petitioner .

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him . No Costs.

21. Thus , the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January, 2007. )

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are 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 .

K. JAYARAMAN , Presiding Officer

WitnessesExamined :-

For the Petitioner WW1 Sri A. Krishnamoorthy WW2 Sri V. S. Ekambaram 17. I find much force in the contention of the learned counsel for the Respondent. Though in the Claim Statement, the Petitioners have made so many allegations 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

For the Respondent MWI Sri C. Mariappan MW2 Sri C. Ramalingam [ भाग II-खण्ड 3 ( ii ) ]

DocumentsMarked :-

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 Хегох copy of the advertisement in The Hindu on daily wages based on Ex. W4 .

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying 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 instruction in Reference book on staff about casuals, not to be engaged at office/branches to do messengerial work.

W9 17-08-88 Xerox copy of the service certificate issued by Santhavasal Branch .

W10 Nil

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

W11 Nil

Xerox copy of the Reference book on Staff matters Vol. III consolidated 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 .

W15 17-03-97 Xerox copy of the service particulars- J. Velmurugan.

3725 G1 /07-23

7617

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

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 of Madurai Circle .

13-02-95

W19

Xerox copy of the Madurai Module Çircular 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 the Bipartite meeting.

09-07-92

W22

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

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

MI

Xerox copy of the settlement .

17-11-87

M2

Xerox copy of the settlement .

16-7-88

M3

Хегох copy of the settlement .

27-10-88

M4

Xerox copy of the settlement .

9-01-91

M5

Xerox copy of the settlement .

30-07-96

M6 9-06-95 Xerox copy of the minutes of conciliation proceedings.

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

M8 15-5-98 Xerox copy of the order in O.P. No. 2787/97 of High Court ofOrissa .

M 10-7-99 Xeгox copy of the order of Supreme Court in SLP No. 3082/99,

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

25-10-99

Μ11.

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

7618

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

नई दिल्ली, 24 अगस्त, 2007

का.आ. 2706.-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 259/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/459/1998- आई.आर. ( बी- I ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 24th August, 2007

S.O. 2706. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 259/ 2004) ofthe Central Government , Industrial Tribunal- cum- Labour Court , Chennai as shown in the Annexure in the IndustrialDispute between the management of State Bank of India and their workmen , received by the Central Government on 24-08-2007.

[No. L- 12012/459/1998 - 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. 259/2004 (Principal Labour Court CGID No. 203/99) [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 . M. Sukumaran

[PART II-SEC . 3 ( ii) ] thedispute on its file as CGID No. 203/99 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. 259/2004.

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

"Whether the demand of the workman Shri M. Sukumaran , wait list No. 420 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled?"

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

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative For the Management : M/s . K. Veeramani , Advocates

AWARD

1. The Central Government, Ministry of Labour, vide Order No. L- 12012/459/98 - IR (B- I) dated 10-03-1999 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 Bankof India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Kodambakkam branch from 04-05-84. 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 Kodambakkam 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 04-05-1984, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Triplicane 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 .

7619 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

Hence, the Petitioner raised a dispute with regard to his non-employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sentto this Tribunal, the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Government to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtainedprior 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 bypayment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The waitlist suffers serious infirmities and it is not based on strict seniority and without any rationale .Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits.

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment /absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlementdrawn under provisions of 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 bonafide and made with ulterior motive . The Petitioner concealed the material facts that he was waitlisted as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due tothe 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. 420 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 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 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 420 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 THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7620

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 .

5. In the additional claim statement , the Petitioner contended that he was having been sponsored by Employment Exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services ofthe Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In theyear 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent /Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedworkmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3) of the Act . As per recruiment 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 seulement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights ofthePetitioner . Hence , the Petitioner prays that an award may be passed in his favour .

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

(1) "Whether the demand of the Petitioner in Wait List No. 420 for restoring the wait list of temporary messengers in the Respondent/

[PART II-SEC. 3 (ii ) ] 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 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 hed filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concernedand while the matter was perling 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 .

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 7621

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[भाग II-खण्ड 3 ( ii ) ]

the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Section 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated . Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted only forthe benefit of the workmen to whom Section 25F applies 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 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 perBipartite Settlement while the 1988 settlement dealt withdailywager in class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 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 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 violative of Article 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex.M1 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 .

7622

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

[PART II SEC . 3 (ii)]

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 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 onbehalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and 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 AMERICANEXPRESS 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 .

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. Fürther , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo) of the I.D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which isstill in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ workmen as 'badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . ' Learned representative further contended that Ex . M10 wait list has not been prepared in accordance with principle of seniority in the legal sense, since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it. Though clause 2(e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/future vacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW.1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged tobe a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central) , Hyderabad, it is neither a 18 (3) settlement nor 12(3) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex. M6. Though the Respondent/Bank produced Ex. M7 and 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 anybearing in the case ofthe Petitioner. Further, though

10. But , as against this , the learned senior counsel for the Respondent/Bank contended that the referencemade 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 7623 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

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 Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

12. But , as against this on behalf of the Petitioner itis contended that mere wording of reference is not 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 aremadewith 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, thePetitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by any union and the 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 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 ILLJ 308 K.C.P.LTD.

7624

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31,1929

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 .

decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond' the order of reference, if points of difference are discernible fromthe 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 VANSAG 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 ünder reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court isexpected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framedto the high expectation of the Labour Court ." Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and candecide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to theback wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into

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 accordingto their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointmentto the persons removed from the select list is notarbitrary and discriminatory . " He further relied on the rulings reported in 19976 SCC 584 SYNDICATE BANK & ORS VS. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared andthe fact that it was a yearly panel expiting 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 ofwait list was made with mala- fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him .

7625

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 3 (ii) ]

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 prínciple 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 .

Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS. Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that "now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad- hoc/ temporary employee who has been continued for one year should be regularised even though : (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door ; (c) he was not eligible and qualified for the post at the time of his appointment ; ( d ) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from 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 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

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 approprlate to jettison the constitutional scheme of appointment , perpetuate 3725Gl/07-24 7626

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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 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 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 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 Article 14 and 16 of the Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Courthas held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service.

TheSupreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of theGovernment in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore ." 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

[PART II SEC . 3 ( ii) ] 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 theRespondent. Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into betweenthe Respondent/Bank and Federation , at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the wait list . Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account of mala fide, misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find- the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

18. Further, the representative for the Petitioner contended that in a similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each casemust be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , giobalisation, 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 employée 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 [ भाग II-खण्ड 3 ( ii) ]

Witnesses Examined:

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

Ex. No. Date

Description

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

W2 20-4-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx. M1 .

W3 24-4-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

1-05-91

W4

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 15-3-97 Xerox copy of the circular letter of zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-3-97 Хегоx copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling 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 06-08-88 Xerox copy of the service certification issued by Kodambakkam branch. 24-01-94

W10

Xerox copy of the service certification issued by Anna University branch .

W11 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Repondent/Bank regarding recruitment to subordinate cadre& service conditions .

W12 Nit Xerox copy of the Reference book on Staff matters Vol . III consolidated upto 31-12-95.

06-03-97

W13

Xerox copy ofthe 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

7627

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

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 ofMadurai Circle

W20 13-02-95 Xerox copy of the Madurai Module Circular letter about Engaging temporary employees from the panel of wait list .

W21 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messenger staff.

W22 09-07-92 Xerox copy of the minutes of 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

W24 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

W25

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

FortheRespondent/Management :-

Ex. No. Date

Description

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

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

M3

Xerox copy of the settlement. 27-10-88

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

M5

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 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 .

7628

[PART II-SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

नई दिल्ली, 24अगस्त, 2007

the dispute on its file as CGID No. 200/99 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. 257/2004 .

का.आ. 2707, 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 257/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/438/1998- आई आर( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 24th August , 2007

"Whether the demand of the workman Shri B. Alayamani , wait list No. 529 for restoring the wait list of temporary messengers in the establishment of State Dank 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 Petitoner in the Claim Statement are briefly as follows :

S.O. 2707. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 257/ 2004) of the Central Goverament 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- 12012/438 /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. 257/2004

[Principal Labour Court CGID No. 200/99 ]

[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 B. Alayamani

1 Party/Petitioner

AND

The Assistant General Manager, If Pariy/Management StateBank of India,Z.O. Chenal

APPEARANCE

For the Petitioner

Sri V. S. Ekaambaran, Authorised Representative.

: Mis. K. Veeranani , Advocates

For the Msaagement

AWARD

The Central Government, Ministry of Labour vide Order No. 1-12012/438/98 - IR (B-1) dated 10-03-1999 has referred this dispute carlier 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 it. Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical ccamination . He was appointed on temporary basis at Modamsbakkam branch from 10-12-1984. 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 Kadambakkam 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 10-12-1984, the Petitioner has been working as a temporary messenger and some time performing work in other branches also. While working on temporary basis in Triplicane 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 7629

भारत का राजपत्र सितम्बर 22 , 2007/ भाद्र 31 , 1929

[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 dlue 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 , sin.ce 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. Eventhough the settlement speaks about three categor.jes only a single wait list has been prepared and the respondent/Bank has been Regularising according to their whims and fancies . The Rrspondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen whicl amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent / Bank with all attendant benefits .

Federation which resulted in five settlements dated 17-11-1987, 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. 526 in waitlist ofZonal Office , Chennai . So far 357 wait listed temporary candidates , out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement , employees were categorised as A, B, and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered. As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994 . The Petitioner has no valid and enforceable right for appointment . The Respondent , had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 526 , 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 pilea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence, the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff 7630

[PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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

Point No. 1:

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners 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 theyhave been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement , the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment .Even though 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/Ba Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights ofthe Petitioner . Hence , the Petitioner prays that an award may be passed in his favour .

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

(i) "Whether the demand of the Petitioner in Wait List No. 529 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18 ( 1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , 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 7631

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 3 ( ii) ]

MW 1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 ofConstitution of India. ' Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . Itis further contended on behalf of the Petitioner that as perdeposition of MW 1 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 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 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 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 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 of the Respondent/Bank issted from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex. Ml and the averments ofMWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex : Ml deals with categorization of retrenched temporary employees into 'A, B and C ' , but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex: W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances, the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment 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 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 settlementdated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively . But, whenMWI 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 7632

THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC . 3 ( ii ) ]

ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under 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 theRespondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression' actually worked under the employer' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc." It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements/lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault 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 oftheprincipal 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 . TheRespondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent / Bank 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 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 . 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

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 aremade with ulterior motive . Further, they have concealed thematerial facts that the Petitioner was wait listed as per 7633

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

[ भाग II-खण्ड 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 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.

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 allegedby the Petitioner in the Claim Statement.

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP. WORKERS UNION VS. INDUSTRIAL TRIBUNAL , 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 of difference are discernible from the material before it, it has only on duty and that is to decidethe points on merits and not tofind out some technical defects in the wording of reference, subjecting the poor workmantohardship involved in moving the machinery length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into bythe Respondent/Bank and the Federation were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further , he relied on therulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the 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 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 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

3/25 G1 /07-25 7634

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 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 .

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 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 the W.P. was thus , misconceived and therefore , the leamed Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3.SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that" candidates included in merit list has no indefeasible right to appointment even if a vacancy exists" and relying on all these decisions , learned counsel for the Resporident contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of theRespondent/Bank in preparing the wait list , it cannot be said thatpreparation 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 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 7635 [ भाग II---खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 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 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 oneunitmay 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 IISCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned . But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation 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 stretched to such an extent as to cover these employees . Since they are

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 récruitment 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 tojettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode of public appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition 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 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 . " [PART II-SEC . 3 ( ii) ] 7636

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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/Bankas alleged by him. Therefore , I find this point against the Petitioner.

Point No. 2:

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 " itis not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon himto be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the 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 .

(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 B.Alayamani WW2 Sri V. S. Ekambaram For the Respondent MW1Sri C. Mariappan MW2 Sri C. Ramalingam 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service . Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the waitlist prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further, their prayer before the labour authorities was 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 aflotted to them. Under such circumstances, it cannot be questioned by the Pectioner .

Documents Marked :-

Ex. No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation 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 betucen the Respondent/Bank and Federation, at the time of reference, they have not questioned the senlemem nor the number allotted to each individual in the wait list. Further , the Pentioners have not questioned the seulement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

[ भाग II-खण्ड 3 ( ii) ]

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messnger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of massenger vacancies and filling them before 31-3-97.

W8 Nil

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

W9 08-02-94 Xerox copy of the service certificate issued by Ashoknagar Branch .

W10 27-06-95 Xerox copy of the service certificate issued by Adyar Branch .

:

W11 27-06-95 Xerox copy of the service certificate issued by Adyar Branch .

W12 13-02-97 Xerox copy of the service certificate issued by Purasawalkam Branch. 02-01-97

W13

Xerox copy of the service certificate issued by Aayanavaram Branch .

10-11-97

W14

Xerox copy of the service certificate issued by Mint Terminus Branch.

W15 23-05-86 Xerox copy of the service certificate issued by Kodambakkam Branch .

W16 1-09-88 Xerox copy of the service certificate issued by North T. Nagar Branch .

W17 29-11-93 Xerox copy of the service certificate issued by Adyar Branch .

30-11-93

W18

Xerox copy of the service certificate issued by Santhome Branch .

W19 01-12-93 Xerox copy of the service certificate issued by K. K. Nagar 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 of the of Reference book onStaff maters Consolidated 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 .

7637

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

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.

W26 26-03-97 Xerox copy of the letter advising selection of part time Minial-G . Pandi .

W27 31-03-97 Xerox copy of the appointment order to Sri G. Pandi ,

W28 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

W29 13-02-95 Хегох сору of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list.

W30 09-11-92 Xerox copy of the Head Office circular No. 28 regarding norms for sanction of messinger 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

Description

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

M2

Xerox copy of the settlement .

16-7-88

M3

Хегоx copy of the settlement .

27-10-88

M4

Хегоx copy of the settlement .

9-01-91

Xerox copy of the settlement .

M5 30-07-96

M6 9-06-95 Xerox copy of the minutes of conciliation proceedings .

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

M8 15-5-98 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa .

M9 10-7-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

Nil

M10

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.

7638

[PART II -SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

नई दिल्ली , 24 अगस्त, 2007

thedispute on its file as CGID No. 204/99 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. 260/2004.

का.आ. 2708.-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 260/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/457/1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 24th August , 2007

"Whether the demand of the workman Shri D. Mohan , wait list No. 547 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. 2708. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 260/ 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- 12012/457/ 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. 260/2004

[Principal Labour Court CGID No. 204/99]

(Inthe matter of the dispute for adjudcation 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 D. Mohan

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative .

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

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/457 /98 - IR (B - I) dated 11-03-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

The 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 Somangalam branch from December , 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 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 Somangalam 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 December , 1980 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Nandabakkam 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 7639 [भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

1-4-97. Hence , the Petitioner raised a dispute with regardto hisnon - employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action 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 . 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 .

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 forpermanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 547 in waitlist of Zonal Office, Chennai . So far 357 wait listed temporary candidates, out of 744 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; ( B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggrégate 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 wasdue to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 547 , 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 .count The Tamil Nadu Industrial Establishment ( Conferment of Permanent Status to Workmen ) Act , 1981 does not apply to Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged.

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law , retrenchment and 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 It is also not correct to say that the Petitioner was 7640

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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

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 in his favour.

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

(1) "Whether the demand of the Petitioner in Wait List No. 547 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)] (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 of the relevant guidelines /circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of 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 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 7641

भारत का राजपत्र: सितम्बर 22 , 2007/भाद्र 31 , 1929

[भाग II-खण्ड 3 ( ii) ]

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 to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW 1 wait list under Ex. M10 comparises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the inatter 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 of separate panels amounts to violation of circular . Secondly , it has not beenprepared as per instructions in Ex . 2circular 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. 11932/9 : 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 . Ml 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 confidentlal 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 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 forappointment 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 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 ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with theeligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex .W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M 10 in this case. Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.M10 that it 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, v. hen 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 , according to 7642

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC . 3 ( ii) ]

ofRespondent/Bank has no application to the Petitioner's case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Section 25B and 25F of the IndustrialDisputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I. D. Act . It isfurther contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds. have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40to50 years and for no fault of theirs , they find themselves stranded in life midstream. They have also not gainfully employed. In such circumstances , this Tribunal has to pass anaward 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 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 forthe averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees. Though theRespondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad , it is neither a 18 (3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex. M6 . Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W. P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference madeby the Government itself is not maintainable in view ofthe facts and circumstances of the case. The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised. Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Section 18 ( 1 ) and 18 (3 ) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive. Further, they have concealed thematerial facts that the Petitioner was wait listed as per [ भाग II खण्ड 3 ( ii) ]

7643

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

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 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 froin disputing the same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list Numbers given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence, the Petitioner's contention against the reference made by the Government is not valid . Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

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 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 union will be binding on all workmen ofthe establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law ofcontracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement. " It further held that " there may be exceptional cases , where there may be allegations ofmala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C. P. LTD. Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18( 1) 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

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability 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 tohardship involved in moving the machinery [PART II-SEC . 3 (ii )] 7.644

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

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 arms 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 apedantic 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 intothe 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 into the question whether the relief prayed for by the Petitioner canbe 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 ofthe Respondent/ Bank, I find the Petioner is not entitled to question the settlement

in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number 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 informedthe 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 rightto appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was 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 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and de vime of wait list has been exhausted, now de 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.VIBESH wherein the Supreme Courthas held that " the only question whoch falls for determination 7645

भारत का राजपत्र: सितम्बर 22 , 2007/भाद्र 31 , 1929

[ भाग II-खण्ड 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 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 tobe continued permanently .Bydoing 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 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 , ifthe 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 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 irsguiar 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 wouldbe 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 7646

[PART II--SEC . 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 mustbe considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the 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.

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 , LCDJ 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 of the Constitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that "only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policydecisions of the Govt. in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore ."

Point No. 2:

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him. No Costs .

21. Thus , the reference is answered accordingly .

(Dictated to the P. A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January , 2007. )

K. JAYARAMAN, Presiding Officer

Witnesses Examined:-

For the Petitioner

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparation of wait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

WW1 Sri D. Mohan WW2Sri V. S. Ekambaram

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

Documents Marked:-

Ex. No. Date

Description

WI 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 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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. 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 messnger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of massenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instructions in Reference book on staff about casuals not to be engaged at office /branches to domessengerial work.

W9 Nov. 1883 Xerox copy of the service certificate issued by Somangulam Branch .

W10 04-08-92 Xerox copy of the service certificate given by Pallavaram branch of Respondent/Bank.

W11 29-08-92 Xerox copy of the service certificate issued Nandambakkam Branch .

W12 22-06-04 Xerox copy of the service certificate issued by Guindy Branch .

W13 05-08-95 Xerox copy of the service certificate issued by Nandambakkam Branch .

W14 05-08-95 Xerox copy of the service certificate issued by Nandambakkam Branch .

W15 Aug. 95 Xerox copy of the service certificate issued by Nandambakkam Branch .

W16 05-01-06 Xerox copy of the service certificate issued by Tambaram Branch .

W17 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre& service conditions .

W18 Nil

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

W19 18-12-97 Xerox copy of the service certificate issuedby Nandambakkanm Branch .

W20 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V . Muralikannan .

W21 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

7647

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

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 of part time Menial- SriG. Pandi .

W25 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

Feb. 2005

W26

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 messinger staff.

W29 09-07-92

meeting. Xerox copy of the minutes of the Bipartite W30 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

W31 07-02-06 Xerox copy of the local Head Office circular about conversion of 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 .

Ex . No. Date

Forthe Respondent/Management :--- 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 28-5-91 Xerox copy of the order in W.P. No. 7872/91 .

M8 15-5-98 Хегох copy of the order in O.P. No. 2787/97 ofHigh Court of Orissa .

M9 10-7-99 Xerox copy of the order of Supreme Court inSLP No. 3082/99.

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

M11 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99, 7648

[PART II SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

नई दिल्ली, 24 अगस्त , 2007

का.आ. 2709. 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 256/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/443/1998- आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 24th August , 2007

S.O. 2709.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref . No. 256/ 2004) of the Central Government , Industrial Tribunal - cum- Labour Court , Chennai as shown in the Annexure in the Industrial Dispute between the managerment of State Bank of India and their workmen , received by the Central Government on 24-08-2007.

[No. L- 12012/443/ 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. 256/2004 [Principal Labour Court CGID No. 197/99] (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

Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 197/99 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. 256/2004 .

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

"Whether the demand of the workman Shri T.Kanniappan, wait list No. 427 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 . T. Kanniappan

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram ,

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

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/443/98 - IR ( B -I) dated 10-03-1999 has referred this dispute earlier to the Tamil Nadu Principal 3725-19

MSS No. 847-888

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 Kadambakkam branch from 09-10-82 . The Petitioner was orally informed that his services were no more required. The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter , filed a copy of settlement underSection 18( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A , B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Kadambakkam 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 09-10-1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Nungambakkam 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.

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[ भाग II-खण्ड 3 (ii) ]

=

2

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 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 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 provislons of Sections 18 ( 1 ) and 18( 3) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was waitlisted as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were

prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-1987, 16-7-1988 , 7-10-1988 , 9-1-1991 and 30-7-1996. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) of I.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 427 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 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 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 427 he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petltioner . 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 3725G1/07-27 7650

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Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verifiedbefore 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 .

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. 427 for restoring the wait list of

[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:

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 inpermanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in . the year 1985, the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (Civil ) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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 vatid 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 7651 [भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 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 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 forthe benefit of the workmen to whom Section 25F applies but for all cases of retrenchment. Therefore , the application ofSection 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that on behalf of the Petitioner that Ex .W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issuedfrom time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . Ml and the averments of MW1 and MW2 and their testimonies during the cross- examination will clearly show how the bank has givena raw dealto the Petitioner from the beginning linking 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 inClause 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 todo messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , opy of which is marked as Ex . W8 . Further , the appointment of daily wage basis för regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances, the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter ofarriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex.W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M 10 in this case. Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based

on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively. But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except his bald statement. Further , according to MW1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 ofConstitution of India . ' Further , the averinent 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 comparises of both messengerial and non - messengerial candidates . .While the temporary employees were appointed after due process of selection and were paid wages on the basis of industry wise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter ofabsorption . Therefore , it is violative of 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 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 [PART II -SEC . 3 ( ii ) ].

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anybearing 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 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 cloded 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 339 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes 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 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 ana 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 documents/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 to evidence in support of the averment and also for the averment ofMW1 . Therefore, the termination of the Peitioner 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 . Mó which alleged to be a copy of minutes of conciliation proceedings ciated 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/ Banik which say's only with regard to modification of Ex. Mlto M made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and Mll interim orders passed by High Count ofMadras in WMP No.11932/91 in W.P. No.7872/91 ceased to have any relevance when the main writ has been disposed ofin the year 1999 and Dherefore , they do not have 7653

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[ भाग II-खण्ड 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 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 bonafide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list Number given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Government is not valid . Further , in this case, the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

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 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 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 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 thật " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliationproceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent , it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement ." Itfurther held that " there may be exceptional cases , where there may be , allegations of mala fides , fraud or even corruption or other inducements . But , in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD. Vs.

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not / decisive 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 PRESIDING OFFICER AND OTHERS wherein the 7654

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

[PART II-SEC. 3 ( ii) ] 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 PÅPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but thatdoes not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS ; wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner ." He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view , it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

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 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 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 malafide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala- 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 7655 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 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 right to the posts , their disengagement is not arbitrary ." He further relied on the rulings reported in 1994 3 LLJ ( Supp) 754 wherein the Rajasthan High Court has held that "Under Section 25G of the I.D. Act retrenchment procedure following principle of 'lastcome- first go ' is not mandatory but only directory, 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:

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 " smerely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitledto be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to theCourt to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad- hoc employees whoby the very nature of their appointment, do not acquire any right ." Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment. He accepts the employment with open eyes . It may be true that he is not in a 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 , perpétuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it willbe creating another mode ofpublic appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly 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 wasnot sponsored by Employment Exchange nor was he appointed in pursuance of a notification. calling for applications which means he had entered by a back door ; (c) 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 continuationof an ad -hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption may bejustified only when such continuance extends to several years . Further , there can be no rule of humb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . Thus , the Supreme Court set aside the orders ofLower Courts . He further relied on the decision reported in 1997 IISCC 1 ASHWANI KUMAR AND OTHERS Vs. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad-hoc basis against an available vacancy which is already sanctioned . But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation 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

in 7656

[PART II -SEC. 3 ( ii) ] THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation, at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the 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 Resporident/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 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 Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled. to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore , I find this point against thePetitioner.

Point No. 2 :

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 of purported periodofprobation would not arise. " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " it is not disputed that the appointment 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 . "

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 T. Kanniappan 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 7657 [भाग II-खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

Documents Marked:-

W19 06-03-97

Ex. No. Date

Description

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

W1 1-08-88

17-03-97

W120

Хегоx copy of the paper publication in daily Thanthi based on Ex . M1 .

Xerox copy of the service particulars- J.Velmurugan

W2 20-4-88

W21 26-03-97 Xerox copy of the letter advising. selection ofpart time Menial G. Pandi .

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

W3

W22 31-03-97

24-4-91

Xerox copy of the appointment order to SriG. Pandi .

W23 Feb. 2005

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

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

W4 1-05-91

W24 13-02-95

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

W5 20-08-91

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.

09-07-92

W26

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

Xerox copy of the minutes of the Bipartite meeting .

W7 25-3-97

W27 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 Staff Bank of India Staff Federation for implementation of norms-creation of the time general attendants .

W28 07-02-06

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 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 byNungambakkam Branch.

W10 24-02-88 Xerox copy of the service certificate issued by Kodambakkam branch .

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

W11 17-12-92

For theRespondent/Management : -

Xerox copy of the service certificate issued by Kodambakkam branch .

Ex. No. Date

Description

W12 Nil

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

Xerox copy of the service certificate issued by Kodambakkam branch .

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

W13 31-05-96

M3 27-10-88 Xerox copy of the settlement .

Xerox copy of the service certificate issued by Purasawalkam branch .

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

W14 01-07-89

M5

Хегоx copy of the settlement .

30-07-96

Xerox copy of the call letter for interview from Respondent/Management

M6

W15 Nil

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 .

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

M8 15-05-98

W16 Nil

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

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

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

06-03-97

W17

Nil

M10

Xerox copy of the wait list of Chennais Module.

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

25-10-99

M11

06-03-97

W18

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

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

3725 G1/07-28 7658

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

नईदिल्ली, 24 अगस्त, 2007

का.आ, 2710.-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 275/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/512/ 1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 24th August, 2007- S.O. 2710. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 275/ 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 24-08-2007 .

[No. L- 12012/512/ 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. 275/2004 (Principal Labour Court CGID No. 230/99) [In the matter of the dispute for adjudication under clause(d) of sub- section ( 1 ) and sub - section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , between the Management of State Bank of India and their workmen]

BETWEEN

Sri .P. Velmurungan

[PART II--SEC. 3 (ii)] thedispute on its file as CGID No. 230/99 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. 275/2004.

follows : 2. The Schedule mentioned in that order is as "Whether the demand of the workman Shri P. Valmurugan , wait list No. 693 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled?"

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

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V.S. Ekambaram, Authorised Representative For the Management : M/ s . K. S. Sundar

Advocates

AWARD

1. The Central Government, Ministry of Labour, vide Order No. L. 12012/512/98- IR (B -I ) dated 19-03-1999 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 Saligramam branch from 01-01-85 . The Petitioner was orally informed that his services were no more required. The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court. The Respondent/ Bank, in addition to its counter, filed a copy of settlement underSection 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Saligramam 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 01-01-85, the Petitioner has beenworking as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Anna Salai branch , another advertisement by the Respondent/ Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required anymore and he need not attend the office from 1-4-1997 .

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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 bypayment ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The waitlist suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government foradjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Section 18(1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was waitlisted as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those

employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resülted 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. 693 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 s ubject 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 wasdue to the facts that all the aforesaid temporary employees wereworking 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 693 he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questionedby any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was [PART II-SEC . 3 (ii ) ] 7660

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

thereupon as temporary messenger is justified?"

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

PointNo. 1:

verifiedbefore the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanentmessenger. As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour . Further , for circle of Chennai wait list of dailywages was not finalized and hence not published and there is only one wait list for the appointment of temporary emplayees . After the expiry of wait list, the Petitioner has na claim for permanent absorption. Hence , for all these reasons , the Respondent prays to dismiss the claim with casts.

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars of the Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitianer in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in . the year 1985, the State Bank Employees Union had filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding an 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 Respandent/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 ofthePetitioner. Hence, the Petitioner prays that an award may be passed in his favour .

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

9. On behalf of the Petitioner, it is contended that 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 (1) "Whether the demand of the Petitioner in Wait List No. 693for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment [ भाग II-खण्ड 3 ( ii) ]

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2

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 , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . Itisfurther contended on behalf of the Petitioner that as per deposition of MW 1 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 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 inThe Hindu dated 1-8-88 . Furthermore , wait list under Ex . M10does not carry particulars ahout 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 onlyduring the year 2003 the Respondent/Bank produced the waitlist 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 thebenefit of the workmen to whom Section 25F applies but for all cases ofretrenchment . Therefore, the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that on behalf of the Petitioner that Ex .W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of MWI and MW2 and their testimonies during the cross -examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking hisfuture with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of 'A, B & C' is quite opposed to the doctrine of ' last come-first go' or first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex.MI provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention 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.MI , M3 and M4 respectively . But , when 7662

[PART II-SEC . 3 (ii)] THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

deposition of management witnesses during the cross examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . 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 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 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 40to50years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass 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 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 ." Learnedrepresentative 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 incase, a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , malafide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged tobe a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18 ( 3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says only with 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

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference madeby the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and

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3

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 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 .

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 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 allegedby the Petitioner in the Claim Statement .

their engagement was not authorised . Further , the 、 Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Section 18 ( 1 ) and 18(3 ) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not 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 resigried 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 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 in the matter of tenability of a reference and he [PART II-SEC . 3( ii ) ] 7664

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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.

relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM ILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond theorder ofreference , ifpoints 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 ORIENTPAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS. wherein the Madhya Pradesh High Court has held that"the Tribunal cannot go behind the terms of reference, butthat 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 isexpected to decide the real nature of disputes between the parties and with that object in view , it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and candecidewhether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore, the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

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 according to their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory . " He further relied on the rulings reported in 19976 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that 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 , 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 listhas 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 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 [भाग II-खण्ड 3 (ii) ]

7665

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 3.1 , 1929

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 vácancies 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 butonly directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how, if the Petitioner has shown anything, the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with costs .

wherein the Supreme Court has held that " now coming to the direction that all those ad -hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad- hoc/ temporary employee who has been continued for one year should be regularised even though : (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door ; (c) he was not eligible and qualified for the post at the time 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 anad -hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption maybe justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of 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 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 itseif 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

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 tobe absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of 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 3725G1/07-29 [PART II-SEC . 3(ii)] 7666

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31,1929

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, 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 a similar case , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence, the Petitioners are entitled for the same relief .

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore, I find this point against the Petitioner.

permanently. By doing so, it will be creating another mode ofpublic appointment which is not permissible , " Further , the Supreme Court while laying down the law , has clearly heldthat "unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would notbe entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules ." Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court has held that " regularisation furthermore, 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 ofpurportedperiod of probation would not arise . " Further, inCDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "itis not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment. made in violation of such rules as also in violation of constitutional scheme enshrined under Article 14 and 16 of the Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240days of service by that itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore ."

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 .

(Dictatedto the P.A. , transcribed and typed by him , correctedand pronounced by me in the open court on this day the 31st January, 2007) .

K. JAYARAMAN, Presiding Officer 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation 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 inthe settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them . Under [भाग II-खण्ड 3 ( ii) ]

7667

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

Witnesses Examined:

W17 06-03-97

For the Petitioner

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

WW2 Sri V. S. Ekambaram WWI Sri P. Velmurugan

W18 17-03-97

Forthe Respondent

Xerox copy of the service particulars-J. Velmurugan.

MW1 Sri C. Mariappan MW2 Sri C. Ramalingam

Documents Marked :-

W19 26-03-97

Ex . No. Date

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

Description

W1

W20 31-03-97

1-08-88

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

Xerox copy of the paper publication in daily Thanthi based on Ex . M1 .

W2

W21 Feb. 2005

20-4-88

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 administrative guidelines issuedby Respondent/Bank for implementation ofEx .M1.

W3

W22 13-02-95

24-4-91

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

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

W23 09-11-92

W4 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 sancition of messenger staff.

W5

W24

20-08-91

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 .

W25 09-07-92

W6 15-3-97 Xerox copy of the circular letter ofZonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-3-97

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

W26 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.

Xerox copy of the local Head office circular about Conversion of part -time employees and redesignate them as general attendants .

W8 Nil

W27 31-12-86 Xerox copy of the local Head office circular about appointment of temporary employees in subordinate cadre .

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

Forthe Respondent/Management :-

W9 27-06-87

Ex . No. Date

Description

Xerox copy of the service certificate issued by Saligramam branch .

M1 17-11-87

W10 29-11-89

Хегоx copy of the settlement .

M2

Xerox copy of the service certificate issued by Purasawalkam branch .

16-07-88 Xerox copy of the settlement .

M3

WII 15-07-04

27-10-88 Xerox copy of the settlement.

Xerox copy of the service certificate issued by K.K. Nagar branch .

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

M5

W12 22-07-04

30-07-96 Xerox copy of the settlement .

Xerox copy of the service certificate issued by Saligramam branch .

M6 09-06-95

W13 Nil

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 administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding appointment of temporary employees .

W14 Nil

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

M9 .

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

10-07-99 Xerox copy ofthe order of Supreme Court inSLP No. 3082/99 .

W15 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-V . Muralikannan .

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 Madurai zonal office for interview of messenger post-K. Subburaj [PART II-SEC . 3 (ii )] 7668

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31, 1929

नई दिल्ली, 24 अगस्त, 2007

Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 218/99 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. 159/2004.

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

का.आ. 2711.-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 159/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/232/1998 - आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 24th August, 2007

"Whether the demand of the workman Shri A. Rathinam , wait list No. 356 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. 2711, In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 159/ 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 24-08-2007 .

[No. L- 12012/232/ 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. 159/2004 (Principal Labour Court CGID No. 218/99)

(Inthe matter ofthe dispute for adjudication under clause(d) ofsub - section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947), between the Management of State Bank of India and their workmen)

:

BETWEEN

Sri . A. Rathinam

: I Party/Petitioner

AND

TheAssistant General Manager, II Party /Management State Bank of India , Region - I, Z.O. , Trichirapalli.

APPEARANCE

: Sri V. S. Ekambaram ,

For the Petitioner

Authorised Representative

: M/s . K. S. Sundar

For the Management

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 H.E. Kailasapuram branch from 23-01-85 . The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent / Bank, in addition to its counter , filed a copy of 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 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 of interview and also with regard to appointment. But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee. From 23-01-85, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in H.E. Kailasapuram branch , another advertisement by the Respondent/Bank was made AWARD

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 1.. The Central Government , Ministry of Labour, vide Order No. L- 12012/232/98 - IR (B -I) dated 17-3-1999 has referred this dispute earlier to the Tamil Nadu Principal [ भाग II-खण्ड 3 ( ii) ]

7669

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

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 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 ofincrements , 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 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.

:

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. 356 in wait list ofZonal Office , Trichy . So far 212 wait listed temporary candidates, out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed .. Under the settlement , employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in 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 356 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government foradjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped frem 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 [PART II-SEC. 3 (ii) ] 7670

THE GAZETTE OF INDIA: SEPTEMBER 22, 2007 /BHADRA 31, 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 :

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998, the Respondent/Bank has issued a circular to the effect that under no ' circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus, the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedworkmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence, the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18(3 ) of the Act . As per recruitment rules ofthe Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights ofthe Petitioner. Hence, the Petitioner prays that an award may be passed in his favour.

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

9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees intheRespondent/Bank under the guidelines and circulars issued by the Respondent/Bank 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 (1) "Whether the demand of the Petitioner in Wait List No. 356 for restoring the wait list of [ भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

7671 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 forthe benefit of the workmen to whom Section 25F applies but for all cases ofretrenchment . Therefore, the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that on behalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of MWI and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future withthe settlements . Further , Clause 1 of Ex .M1 deals with categorization of retrenched temporary employees into ' A, B and C" , but this categorization of 'A, B& C' is quite opposed to the doctrine of ' last come first go'or' first come- last go ' and therefore, the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex . Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption alongwith 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 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 morebeneficial treatment in the matter ofarriving at qualifying service for interview and selection. But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M 10 in this case . Those candidates under Ex . 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 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, accordingto MW1 wait list under Ex . M10 was prepared on 2-5-92but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further , the averment of MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . 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 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 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 listEx.

[PART II-SEC. 3 (ii ) ] 7672

THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 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 40to50years and for no fault of theirs , they find themselves stranded in life midstream. They have also not gainfully employed . In such circumstances , this Tribunal has to pass 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 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 duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ workmen as 'badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex . M10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it. Though clause 2(e) of Ex. M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also forthe averment of MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ), Hyderabad, it is neither a 18 ( 3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . 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 7673 [ भाग II-खण्ड 3 (ii) ]

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

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 which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also ." He further relied on the . rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list Number given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence, the Petitioner's contention against the reference made by the Govt . is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

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 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 andthe 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. INDUSTRIIAL . TRIBUNAL A.P. AND OTHERS wherein under Section 12( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and receivedterminal benefits , but the workmen raised a plea before the Tribunal that 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 . " 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

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 3725G1/07-30 [PART II-SEC . 3 (ii )] THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

7674

is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

onthe 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 isnot 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 questionwhether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties."He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that "it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical 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 ofreference is not happily framed nor was it framed to the highexpectation of the Labour Court ." Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look intothe 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 Courthas held that "the only question which falls for determination in this appeal is whether a candidate whose name appears inthe 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 inviewofthe impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that itwas ayearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry ofthe panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 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 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 [ भाग II-खण्ड 3( ii) ] .

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

7675 HARYANA AND ORS . VS. PIARA SINGH AND OTHERS 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 of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

wherein the Supreme Court has held that " now coming to the direction that all those ad hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc/ temporary employee who has been continued for one year should be regularised even though: (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door ; (c) he was not eligible and qualified for the post at the time of his appointment ; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because inone case , adirection was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications, it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must bemoulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of Lower Courts . He further relied on the decision reported in 1997 II SCC 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 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 confirmingthese employees , therefore , remained a nullity ."

15. Learned Senior Advocate further argued that even inrecent decision reported in 2006 4 SCC I SECRETARY, STATE OF KARNATAKA VS. UMA DEVI, the Supreme Courthas held that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on - the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to theCourt to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad- hoc employees who by the very nature of their appointment, do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature isnot aware of his employment. He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or [PART II-SEC . 3 (ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7676

thepreparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation , at the time ofreference , they have not questioned the settlement nor the number allotted to each individual in the wait list. Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account of mala fide, misrepresentation, fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

18. Further , the representative for the Petitioner contended that in 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 240days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each casemust be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore , I find this point against the Petitioner .

casually got employed should be directed to be continued permanently.By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further, the Supreme Court while laying down the law , has clearly held that " unless the appointment is in terms 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 of purported periodofprobation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " it is not disputed that the appointment 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?

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him . No Costs .

21. Thus , the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January, 2007) .

K. JAYARAMAN , Presiding Officer 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list 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 7677 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

Witnesses Examined: -

W16 17-03-97

For the Petitioner

Xerox copy of the service particulars-J. Velmurugan.

WW1 Sri A. Rathinam WW2 Sri V. S. Ekambaram

W17 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

For the Respondent MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj

W18 31-03-97

Documents Marked :-

Xerox copy of the appointment order to SriG. Pandi .

Ex.No. Date

Description

W19 Feb.2005

W1 1-08-88

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

Xerox copy of the paper publication in daily Thanthi based on Ex. M1 .

W2 20-4-88

W20 13-02-95

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

Xerox copy of the Madurai Module Circularletter about Engaging temporary employees from the panel of wait list.

W3 24-04-91

W21 09-11-92 Xerox copy of the Head office circular No. 28 regarding Norms for sanction of messenger staff.

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

W22 09-07-92

W4 1-05-91

Xerox copy of the minutes of the Bipartitemeeting.

Хегох copy of the advertisement in The Hindu on daily wages based on Ex . W4.

W23 09-07-92

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97

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

W7 25-3-97

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 messenger vacancies and filling them before 31-3-97.

W8 Nil

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

FortheRespondent/Management :---

Ex. No. Date

Description

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

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

W9 12-01-88

M2

Xerox copy of the service certificate issued by H.E. Kailasapuram branch.

16-07-88 Xerox copy of the settlement.

M3

W1008-10-97

27-10-88 Xerox copy of the settlement.

M4

Xerox copy of the service certificate issued by H.E. Kailasapuram branch .

09-01-91 Хегоx copy of the settlement .

W11 Nil

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

M6 09-06-95

proceedings . Xerox copy ofthe minutes of conciliation

M7

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

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

W12 Nil

M8

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

15-05-98

06-03-97

W13

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

M9

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

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

06-03-97

W14

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

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

06-03-97

W15

25-10-99

M11

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

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

[PART II SEC. 3 ( ii) ] 7678

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

नईदिल्ली , 24 अगस्त, 2007

LabourCourt, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 224/99 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. 162/2004.

का.आ. 2712.-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 162/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/527/1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 24th August , 2007

"Whether the demand of the workman Shri K. Kasinathan , wait list No. 313 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. 2712. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 162/ 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 24-8-2007 .

[No.L- 12012/527/ 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. 162/2004

[Principal Labour Court CGID No. 224/99]

(Inthematter ofthe dispute for adjudication under clause(d) of sub- section ( 1 ) and sub-section 2(A) of Section 10 of theIndustrialDisputes Act, 1947 ( 14 of 1947) , betweenthe Management of State Bank of India and their workmen)

BETWEEN

Sri K. Kasinathan

: 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 .

FortheManagement : M/ s . K. S. Sundar , Advocates

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Trichy Town branch from 10-01-1983 . The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject-matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court. The Respondent/ Bank, in addition to its counter , filed a copy of settlement underSection 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Trichy Town branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But, they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 10-01-1983 , the Petitioner has been working as a temporary messenger and sometime performing work in other branches also . While working on temporary basis in STC 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 31-3-1997 that his services are not 1. The Central Government Ministry of Labour, vide Order No. L- 12012/ 527/98 - IR (B - I) dated 19-03-1999 has referred this dispute earlier to the Tamil Nadu Principal 7679 [भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 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 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 17-11-1987,16-07-1988,07-10-1988 , 9-1-1991 and30-7-1996. The said settlements became subject- matter of conciliation proceedings and minutes were drawn under Section 18(3 ) ofI.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 313 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 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 313 , he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen ) Act, 1981 does not apply to Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence, the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 (1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facts that hewas wait 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 7680

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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 thewaited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment ofdaily wages/casual labour . Further , for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list, the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs.

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by Employment Exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence, the Petitioner prays that an award may be passed in his favour .

6. Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 ( 3 ) of the Act . As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of 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. 313 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) ] (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 interview and having been selected and wait listed in terms ofthe relevantguidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concernedandwhile the matter was pending in Writ Petition No. 542 (Civil ) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex. 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 furtherprayed for reinstatement with back wages and other attendant benefits .

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees in the Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18( 1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all. Further , they have invoked the relevant provisions of Chapter V - A 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 [ भाग II खण्ड 3 (ii) ]

7681

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 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 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 . Ml deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex . Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , 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 MWI wait list under Ex. M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate 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 MW 1 wait list under Ex . M10 comprises ofboth messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industry - wise settlement , it is not so in the case of casuals . Therefore, both belongs to two different and 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 contendedthat 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 . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . MI. was not produced at the time of conciliation proceedings 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 3725 G1/07-31 [PART II-SEC . 3 ( ii ) ] 7682

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 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 whe.. the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further, argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal. In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements / lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40to50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

10. But , as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3 ) of the ID. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed engaged in leave vacancy was used as a device to take them out of the principal clause 2 (00) of the I.D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH VS. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employ workmen as ' badlies ' , casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.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 , 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 7683 [ भाग II-खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

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 appropriateGovt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner . Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended thatthough the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list Numbergiven for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt. is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies : The settlement entered into by the Respondent/Bank and the Federation werebona fide which were the only workable solution and isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even thosewho belong to the minority union which had objected to the same. To that extent , it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements . But , in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration." Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannoi go beyond the order of reference , if points of difference are discernible from the material before it, it has only on duty and that is todecide the points on merits and not to find out sometechnical defects in thewording ofreference, subjectingthe poor workman 7684

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[PART II-SEC . 3 ( ii ) ] to hardship involved in moving the machinery again. " It further held that "the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAGNATHAN ORIENT PAPERMILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal 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 Courthas

held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy. " In that case, pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff anda policy decision has been taken to reduce the number 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 vacancy exists " and relying onall these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him. Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad- hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad - hoc/ temporary employee who has been continued for one year should be regularised even though ( a ) no vacancy is available for him which means creation of a vacancy ; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling [ भाग II-खण्ड 3 ( ii) ]

7685

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come - first go ' is not mandatory butonly directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank. Any how , if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim isto 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 appointinent 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 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 conceptof retrenchment therefore , cannot be stretched to

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY , STATE OF KARNATAKAVS . UMA DEVI, the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad- hoc employees who by the very nature of their appointment , do not acquire any right . " Further, it has also held that it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But onthat ground alone , it would not be appropriate 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 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 ofhis 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 7686

[PART II-SEC . 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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.

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 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 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 entitledto be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him . No Costs .

21. Thus , the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January , 2007.)

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 K. Kasinathan WW2Sri V.S. Ekambaram 17. I find much force in the contention of the learned counsel for the Respondent. Though in the Claim Statement , the Petitioners have made so many allegations with regardto 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

For the Respondent MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj [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 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 daiły 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 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 23-11-83 Xerox copy of the service certificate issued by Tiruchirapalli Town Branch .

W10 29-10-84 Xerox copy of the service certificate issued by Asaveerankudikadu Branch .

W11 18-03-85 Xerox copy of the service certificate issued by Ramalinga Nagar Branch .

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

W13 08-08-94 Xerox copy of the service certificate issued by Trichy Z.O. Branch .

W14 07-02-95 Xerox copy of the service certificate issued by Tiruchirapalli Branch.

W15 07-10-95 Xerox copy of the service certificate issued by Staff & Training College , TrichyBranch .

W16 06-12-95 Xerox copy of the service certificate issued by Tiruchirapalli Branch .

W17 09-01-96 Xerox copy of the service certificate issued by Ariyalur Branch .

W18 04-03-96 Xerox copy of the service certificate issued by Tiruchirapalli Town Branch.

W19 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

W20 Nil

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

7687

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

06-03-97

W21

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

06-03-97

W22

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

06-03-97

W23

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

17-03-97

W24

Xerox copy of the service particulars- J.Velmurugan.

26-03-97

W25

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

W26 31-03-97 Xerox copy of the appointment order to SriG. Pandi,

W27 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

W28 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

09-11-92

W29

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

09-07-92

W30

Xerox copy of the minutes of the Bipartite meeting .

W31 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms --creation of part time general attendants .

W32 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

W33 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre . /Management :-

For the Respondent Ex . No. Date

Description

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

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

M3 27-10-88 Xerox copy of the settlement .

M4 9-01-91 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 .

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 .

7688

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

नईदिल्ली, 24 अगस्त, 2007

का.आ. 2713.-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 274/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था । [सं. एल -12012/514/1998 -आईआर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 24th August, 2007

S.O. 2713. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 274/ 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- 12012/514/ 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. 274/2004 [Principal Labour Court CGID No. 229/99] [Inthematter 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 K.Gajendran

[PART II-SEC . 3 ( ii) ] Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 229/99 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. 274/2004 .

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

"Whether the demand of the workman Shri K. Gajendran , wait list No. 579 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled ?"

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

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative.

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

AWARD

1. The Central Government , Ministry of Labour , vide Order No. L- 12012/ 514/ 98 - IR ( B - I) dated 19-03-1999 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 Anna Salai branch from 09-02-1982. 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 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 Anna Salai 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 09-02-1982 the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Saidapet main branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-1997 that his services are not 7689 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

こ

required any more and he need not attend the office, from 1-4-97. Hence, the Petitioner raised a dispute with regardto his non -employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the 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 17-11-1987 , 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. 525 in waitlist 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 240 days were to be considered and under category; ( B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees whohave completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered. As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which were to arise upto 31-12-1994 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 525 , he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law, retrenchment and 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

3725 GI/07-32 7690

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

[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 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 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 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 .

5. In the additional claim statement , the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services ofthe Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent/Bank 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. 579 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified?"

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18( 1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees at. branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , 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 [ भाग II-खण्ड 3 ( ii) ]

7691 भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

:

*

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.MI provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further, engaging casuals to do messengerial work is in contravention 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

MW1 wait list under Ex.M10 was prepared on 2-5-92but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MWI 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 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 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 7692

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

[PART II SEC . 3 (ii ) ]

ofRespondent/Bank has no application to the Petitioner's case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under 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 .

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 . 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 documentto show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad, it is neither a 18( 3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , theydo not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex. 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

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 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 [ भाग II-खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

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establishment. Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account 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. inservice with full back wages etc. Hence, the Petitioner's contention against the reference made by the Government is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were 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.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 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 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

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 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 7694

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not 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 isnot questioned by any of the unions of the Respondent/ Bank , I find the Petitioner is not entitled to question the settlement .

in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy . " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98, we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry ofthe panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively." He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has 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 thatpreparation 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 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 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

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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 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 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 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

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY , STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment. He accepts the employment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But onthat ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed tobe continued permanently . Bydoing 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 . " 7696

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

Further, in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD. AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "itisnot disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore . "

[PART II SEC . 3 ( ii )] 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 forreinstatement 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 casemustbe 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

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 .

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 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 andpronounced by me in the open court on this day the 31st January , 2007. )

K. JAYARAMAN, Presiding Officer Witnesses Examined:-

For the Petitioner WW1 Sri K. Gajendran WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri C. Ramalingam [भांग II-खण्ड 3 (ii ) ]

7697

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

Documents Marked :-

Ex . No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation 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 Хегоx 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 instruction in Reference book on staff about casuals not to be engaged at office /branches to do messengerial work .

W9 31-05-82 Xerox copy of the service certificate issued by Anna Road Branch.

W10 30-10-93 Xerox copy of the termination notice issued by Saidapet Branch .

W11 29-10-96 Xerox copy of the service certificate issued by STC Mandaveli Branch .

W12 28-09-96 Xerox copy of the service certificate issued by Mandaveli 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 maters Vol . III consolidated upto 31-12-95.

W15 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post -V. Muralikannan.

W16 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K . Subburaj .

3725G1/07-33

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 advisting selection ofpart time Menial-G. Pandi. 31-03-97

W20

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

Feb. 2005

W21

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

13-02-95

W22

Xerox copy of the Madurai Module Circularletter about engaging temporary employees from the panel of wait list. 09-11-92

W23

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

09-07-92

W24

Xerox copy of the minutes of the Bipartite meeting.

09-07-92

W25

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

07-02-06

W26

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

31-12-85

W27

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

For the Respondent/Management:-

Ex. No. Date

Description

MI

Xerox copy of the settlement. 17-11-87

M2

Хегоx copy of the settlement .

16-7-88

M3

Xerox copy of the settlement .

27-10-88

M4

Xerox copy of the settlement. 9-01-91

M5

Xerox copy of the settlement .

30-07-96

M6 9-06-95 Xerox copy of the minutes of conciliation proceedings.

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

M8 15-5-98 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 .

Nil

M10

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 .

[PART II -SEC . 3 ( ii ) ] 7698

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

नई दिल्ली, 24 अगस्त, 2007

Pratap, daily paid worker w.e.f. 25th May , 1988 is just, fair and legal ? If not what relief the worker concerned is entitled to ?"

का.आ. 2714. औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार सी एस डब्ल्यू सी आर टी आई रिसर्च सेन्टर के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं.- II , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 894/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल -42012 / 111 / 88 - डी- II ( बी ) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi , the 24th August, 2007.

The notice of the reference was given to the parties who appeared through their counsel and filed their pleadings in the shape of statement of claim and replication by the workman , Written Statement by the Management . Theworkman supported his claim with his affidavit whereas theManagement tendered the affidavit of Shri . G.S Gaddu , Assistant Admn . Officer. The parties have also placed on record . A copy of the agreement claimed to have been entered into between the parties in presence of the Assistant Labour Commissioner ( C), Rohtak on 4th August , 1988 . They have also produced copies of other documents besides photo copy of the judgments of the Hon'ble Supreme Court and that of Punjab and Haryana High Court .

S.O. 2714.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 894/ 2005) of the Central Government Industrial Tribunal - cum- Laour Court No. II , Chandigarh as shown in the Annexure inthe Industrial Dispute between the employers in relation to the management of CSWCRTI Research Centre and their workman , which wsa received by the Central Government on 24-8-2007 .

[No. L-42012/111/88 - D- II (B)] SURENDRA SINGH, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM -LABOUR COURT- IL, CHANDIGARH

PresidingOfficer : SHRI KULDIP SINGH

CASE I.D. No. 894/2k5

Registered on : 12-09-2005

Date ofDecision : 11-06-2007

The claim of the workman is that he had joined service with the Management on 1st April , 1984 ; and that his services were terminated by the Management. Thereupon the matter was taken to the Labour Court , Ambala. During theproceedings in the said Labour court , the parties arrived at a settlement in presence of the ALC by which the Management agreed to re- employ the workers including the petitioner , total 20 in number . As a follow up of that agreement the workman withdrew his dispute . He was re- employed by the Management w.e.f. 8th April , 1988 , but his services were again terminated on 26th May, 1988 , without giving him any reason , compensation and without holding any inquiry or giving any show cause notice. Moreover, the respondents did so without terminating the settlement arrived at between the parties . Thus the termination of services of the workman was bad in law, unfair , unjust and illegal. He prayed for declaring the order oftermination of services of the workman as bad in law and reinstating him with all benefits including of back wages .

PAWAN KUMAR

...PETITIONER

Versus

The Management of CSWCRTI Research Centre , Sector- 27, Madhya Marg, Chandigarh and Another Through its OfficeIncharge

...RESPONDENT

APPEARANCE

= For the Workman : Mr. Jasvinder Kumar Bakshi ,

Advocate

For the Management: Mr. M. L. Basur , Advocate AWARD

This a reference under Section 10 of the I.D Act , 1947, for short " Act " received from Government of India, Ministry of labour , vide their no . - L-42012/ 111 / 88 - D- II (B) , dated 1-9th Nov. , 1989. The reference reads as under:

"whether the action of the Management of CSWCRTI, research centre , Chandigarh in terminating the services of Shri Pawan Kumar S /o Shri Ram

The claim of the workman has been opposed by the Management on various grounds . It is their claim that the Management is not an Industry as defined by the Section 2-J of the Act, therefore , the reference is bad . On merit it is their submission that the workman was engaged as a daily wager in May , 1984 and he did not work for 240 days continuously in the year before the date of his disengagement therefore , he has no right to claim . Claiming that the termination of the workman was legal , it is stated by theManagement that since the services of the workman were no more required , therefore , those were terminated on 25th May, 1988. Admitting that a settlement was arrived at between the parties , accordingto which the workers were categorized in two i.e one who had served the Management for 240 days , and two those who had not served them for that period. It was further agreed that those who were retrenched on 21st Dec. , 1987 will be re -employed in the same capacity from the date they withdrew the cases filed against the Management . According to the agreement the 20workmen including the petitioner were to be re-employed on their withdrawing the cases . However , there was no guarantee that their services will not be terminated later on 7699 [भाग II-खण्ड 3( ii ) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

even if the work did not allow them to be retained in service .

Thus their services could be terminated if the work was not available for them and the matter regarding the back wages was tobe referred to the Tribunal for judicial , mutuallyby the parties . The present reference having not been made for back wages , therefore , this Tribunal has no jurisdiction to take contingency of that matter. Since the workman was not covered by any of the provisions of the Act , therefore , he is not entitled to any relief including under Section 25 -F oftheAct.

Industry in the enterprise , prima facia. Their Lordship further held that even the professions , clubs , educational institution cooperatives , research institutes and other kindered adventures , if fulfilled the triple test , are an Industry . In view of the evidence produced by the parties there remains no doubt that the Management was an Industry . The Management, by their conduct also , admitted themselves to be an Industry , as they submitted themselves to the jurisdiction of the conciliation officer , to the jurisdiction of Labour Court , Ambala, and , therefore , it does not lie in their mouth now to claim that they are not an industry.

The claim of the workman is that the Management haveterminated his services on 26th May , 1988 , in violation of the provisions of settlement arrived at between the parties during the course of trial of the dispute in the Labour Court, Ambala. The workman has in a way alleged the violation of agreement entered into between the parties under section 12of the Act. This section reads that whenever an Industrial Dispute exists or is apprehended, the conciliation officer shall hold conciliation proceedings . During the proceedings , he shall make efforts about the settlement of the dispute and for that purpose, he willdo all that he thinks fit for the purpose of bringing the parties to come to a fair and amicable settlement and if a settlement is arrived at he will send the report thereof to the appropriate Government together with a memo of settlement signed by the parties to the dispute . Copy of the settlement arrived at between the parties on 4th April , 1988 , is on record and the parties including the Management have admitted that a settlement was arrived at between the parties during the course of proceedings in the labour court at Ambala . The terms of settlement reads as under :

Theworkman in his replication disputed the claim of the Management and reiterated the claim made by him in the Claim Statement . The workman in his oral statement recorded on 8th April , 1993 also made a similar claim . He denied that he had not served for 240 days before the date of termination of his services . The witness for the Management ,G.S Gaddo proved his affidavit and stood to the cross examination of the counsel for the workman . He admitted that the goods produce by the Management was distributed among the workers on market rates . He further admitted that for the sale of the timber , grass and fruits , tenders used to be called from the market . He admitted that an agreement was arrived at between the parties on 4th April , 1988 and before terminating his services , no notice was given to the workman , and nor to his Union , that no work was available as no funds were available, therefore , no work could be done and therefore there was no requirement of the workman . He further stated that the workmen were given assurance that whenever thejob was available , it will be given to them and many workers had retired and many were made regular ; and that on the retirement of senior workmen thejuniors were made regular . He however , denied that there was vacancy of unskilled workers available as a result of regularization of the seniors and on the retirement of some of them.

1. It is agreed by both the parties that all the workmen who have been retrenched on 21st Dec. , 1987 will be re- employed in the same capacity w.e.f. the date the Union or the individual workers , withdrew the cases under process before Labour Court/Tribunal Ambala ,

2. It is agreed by both the parties that the 20 workmen whose name exist in Annexure - II of the settlement will be employed provided the Union or the workman concerned withdrew their cases from the Labour Court at Ambala.

3. It is agreed by both the parties that the issue of back wages and continuity of service will be referred to the Tribunal mutually for judicial. verdict for relief to the workers .

4. It is agreed by both the parties that the implementation report of the settlement will be sent to the A.L.C. ( C) , Rohtak by 30th April , 1988 .

Ihave gone through the file and have also considered the submissions made by the parties . Before considering the case of the parties on merit , I would like to dispose of the preliminary objection raised by the Management that since the Management is a research institute , not engaged in any commercial activity , therefore , is not an Industry and in view of that the workman cannot claim to be a workman. In my opinion there is no merit in this claim ofthe Management . In his statement, made byG.S Gaddu , Administrative Officer admitted that the Management produces grass , fruit, vegetable etc. and disposed of the same by auction besides by distributing the same among the workers on payment .nent . The Hon'ble Supreme Court in a famous full bench of seven judges decision in the case of Bangalore Water Supply and Sewarage Board Vs. A. Rajjapa reported as 1978 LAB I.C. 467, has laid down the criteria to declare an establishment, corporation , institute an Industry . The test they have laid down , that in an establishment where there is a systematic activity , organized by co -operation between the employer and employees , for the production or distribution of goods and services , calculated to satisfy human wants and wishes , there is an

The parties have admitted that after the settlement , theManagement had taken all the 20 workers , including the workman, back in service . The workman has claimed that he was taken back in service on 8th April , 1988. In [PART II SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7700

The workman performed his part of the contract by withdrawing his claim from the Labour Court , Ambala. The Management re- employed him but terminated his service inviolations of provisions of Section 19(2) of the Act . The Management has given the reasons that since they did not have the grants therefore , there was no work available, for doing which, the workman could be engaged . Thus his services wereterminated . This claim of the Management is withoutany merit rather it was in violation of the settlement arrived at between the parties . By their conduct the Management violated the sanctity of the settlement which was protected by Section 19(2) of the Act . The action of theManagement was illegal and it is declared so.

replyto the claim made by the workman , in para no . 6 of his Claim Statement , the Management stated that the claim madeby the workman was a matter of record. They did not deny that the workman was not taken back on service on 8th April , 1988 as a consequence of settlement arrived at between the parties . They also did not dispute that the services of the workman was disengaged on 26th May, 1988 , although they claimed, in para 3 of their Written Statement, that the reference under hand is regarding termination made on 3rd August , 1988 , which is not the claim even of the workman nor it is the reference received from the Government of India. Thus there is no dispute that the workmen was re- employed on 8th April , 1988 and thathis services were terminated on 26th May , 1988 .

In terms of sub-section 2 of the 19 of the Act, the Management could not terminate the settlement unilaterally . Since by the operation of the statute the workman is to be treated tobe in the service of the Management for 8 months which means not less than 240 days within 12 months preceding the date of termination of his services , therefore, hewas entitled to the protection under Section 25 - F of the Act as well . It is clear from the pleadings of the parties that theManagement terminated the services of the workman in violation of Section 19 sub- clause 2 and Section 25 - F of the Act, therefore , their action was in violation of the provisions of the act and the same is declared as bad in law . The disengagement done by an act, which is declared as bad in law, is quashed.

Hon'ble Supreme Court of India, in the cases of ShuklaMansika Industry Private Ltd. Vs. workmen (1977) 2 LLJ 339 and Patiala Central Cooperative Bank Ltd. Vs. Patiala Central Cooperative Bank Employees Union , reported as 1997 2 LLJ 631 , highlighted the object of sub Section 2 of Section 19 of the Act . According to their Lordships , the object of Section 19 of the Act is to ensure that once the settlement is arrived at, there prevails peace , accord and cordiality between the parties , during the period agreed upon and if settlement does not require to be altered for some reasons or the other , the same climate prevails for by extension of the settlement by operation of law. There is option given to either party to terminate the settlement by a written intimation. After the expiry of two months from the date of such notice , the settlement will stand terminated. This is in accordance with the policy of settlement of Industrial disputes which is the principle objectunderlying the provisions of the Act .

There is another aspect of the matter . Since the action of the Management in terminating the services of the workman has been declared bad in law and has been quashed, therefore , the workman is treated to be in the employment of the Management for full six months , from the date he was taken back in employment i.e. 8th April , 1988. As per the effect of the Section 19(2) of the Act, the settlement could not be treated to have been terminated until the expiry of two months , from the date on which a notice in writing of the intention of the party to terminate the settlement is given . In this case no such notice was givenby the Management and they unilaterally terminated the services of the workman within 6 months which they were not entitled to do under the statute . Thus the workman isto be treated in the employment of the Management for further two months rather till date since the Management did not disclose their intentions to terminate the settlement even after the expiry of six months , from the date of the settlements . In this situation there is no merit in the claim of the Management that since the workman had not served them for 240 days preceding the date of his disengagement , therefore , he is not entitled to the protection under Section 25- F of the Act . The situation is rather in favour of the workman. Interms of section 19(2 ) of the Act, he is to be treated to be in the employment of the Management for at least 8 months from 8th April , 1988 as his services could not be terminated before that without a notice and the Management did not issue any such notice.

Inview of the discussion made above , I hold that the action of the Management of CSWCRTI , Research Centre, The plain reading of this provision shows that the settlement arrived at between the parties remains binding on them for a period ( 1 ) as agreed upon by the parties or (2) for six months from the day on which the memo of settlement was signed by them. In this case the parties did not agree to the period for which the settlement was to remainforce. The agreement arrived at between them was thus to remain in force during the period of six months from the day when the settlement came into force i.e. 8th April , 1988. The settlement, therefore , could not be terminated by the parties before the expiry of six months . In this regard, I borrow the reasoning given in the case of Deccan Tile Works Vs. Their workmen reported as ( 1960) 2 LLJ 298. It is also settled principle of law that the settlement so arrived atdoes not cease to be binding ipso facto on the expiry of the period as mentioned in the sub - section . It is also not open to the party to terminate or unilaterally repudiate the settlement without complying with the requirements of Sub-section 2 of the 19 of the Act. In this regard , besides the case of Deccan Tile Works (Supra) , State of Kerala Vs. AntonyDecruz reported as ( 1966) 1 LLJ 373 , may be referred to. Thus as per the provision of Section 19(2) of the Act and the law laid down by the Apex Court and the High Courts it was not open to the Management to terminate the settlement arrived at between the parties on 4th April , 1988 .

[ भाग II-खण्ड 3( ii ) ]

7701

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

to the management of CSWCRTI Research Centre and their workmen , which was received by the Central Government on 24-8-2007.

[No. L-42012/ 105/88 -D- II (B) ] Chandigarh interminating the services of the workman , daily paid worker , w.e.f. 26th May, 1988 was unjust, unfair and illegal . Therefore , the workman is to be treated on the employment ofthe Management all through this period as ifthere was no order of termination of his services .

SURENDRA SINGH , Desk Officer

ANNEXURE

CENTRALGOVERNMENT INDUSTRIAL TRIBUNAL CUM -LANOUR COURT- II, CHANDIGARH

PresidingOfficer : SHRI KULDIP SINGH

CASE I.D. No. 893/2k5 Registered No: 12-09-2005

Date of Decision : 11-06-2007

ASHWANI KUMAR

PETITIONER

Versus

The Management of CSWCRTI Research Centre , Sector- 27, Madhya Marg , Chandigarh and Another Through its Office Incharge

RESPONDENT

APPEARANCE

For the Workman : Mr. Jasvinder Kumar Bakshi Advocate

For the Management: Mr. M. L. Basur , Advocate

AWARD

This a reference under Section 10 of the I.D. Act, 1947, for short " Act" received from Government of India , Ministry of labour , vide their No. - L- 42012/ 105/88 - D- II (B) , dated 3rd Nov. , 1989. The reference reads as under:

The next question which arises is as to what relief the workman is entitled to . As per his own claim he had joined service with the Management on 1st October , 1957. Ifhe was minimum of 18 years of age at that time by now he is round about 70 years of age and cannot be presumed to be eligible for the service of the Management . It is also a fact that he did not work for the Management from the date his services were terminated in the year 1998. He has also not claimed that during this period he has remained not gainfully engaged . Thus he is not entitled to the back wages , but he is entitled to all service benefits including his regularization as if he was entitled for that what for to the termination of his services by the Management . He is also entitled to compensation for the sufferings at the hands ofthe Management during this period and for all the service benefits he was entitled to . I , therefore , direct the Management to pay an amount of Rs.50,000 as one time compensation to him for the suffering he received. The Management is directed to examine the case of the workman within three months from the date this award becomes enforceable to find out as to what benefits he is entitled to . In case the Management fails to do it , the workman shall also be entitled for the interest on the amount of compensation awarded to him at the rate of 9 %p.a from the date the Management appeared in this Tribunal i.e. on 12th Dec. , 1990. Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completion .

KULDIP SINGH, Presiding Officer

नई दिल्ली, 24 अगस्त, 2007

"whether the action of the Management of CSWCRTI , Research Centre , Chandigarh in terminating the services of Shri Ashwani Kumar S/o Shri Harbans Lal , daily paid worker w.e.f. 27th May, 1988 isjust, fair and legal ? If not what relief the worker concerned is entitled to ? "

का.आ. 2715.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार सी एस डब्ल्यू सी आर टी आई रिसर्च सेन्टर के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं.- II , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 893/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[ सं. एल -42012/105/88 -डी- II ( बी) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi , the 24th August, 2007

The notice of the reference was given to the parties who appeared through their counsel and filed their pleadings in the shape of statement of claim and replication by the workman , Written Statement by the Management . Theworkman supported his claim with his affidavit whereas theManagement tendered the affidavit of Shri . G.S Gaddu , Assistant Admn . Officer. The parties have also placed on record . A copy of the agreement claimed to have been entered into between the parties in presence of the Assistant Labour Commissioner (C) , Rohtak on 4th August, 1988 . They have also produced copies of other documents besides photo copy of the judgments of the Hon'ble Supreme Court and that of Punjab and Haryana High Court.

S.O. 2715. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 893/ 2005) of the Central Government Industrial Tribunal- cum- Labour Court No. II, Chandigarh as shown in the Annexure inthe Industrial Dispute between the employers in relation

The claim of the workman is that he had joined service with theManagement on 1st September , 1981 ; and that his services were terminated by the Management . Thereupon the matter was taken to the Labour Court, Ambala . During the proceedings in the said Labour court, the parties arrived [PART II-SEC . 3 ( ii) ) 7702

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

fruits , tenders used to be called from the market . He admitted that an agreement was arrived at between the parties, on 4thApril , 1988 and before terminating his services , no notice was given to the workman , and nor to his Union , that no work was available as no funds were available, therefore , no work could be done and , therefore , there was no requirement of the workman . He further stated that the workmen were given assurance that whenever the job was available , it will be given to them and many workers had retired and many were made regular ; and that on the retirement of senior workmen the juniors were made regular . He, however, denied that there was vacancy of unskilled workers available as a result of regularization of the seniors and on the retirement of some of them .

at a settlement in presence of the ALC by which the Management agreed to re -employ the workers including the petitioner , total 20 in number . As a follow up of that agreement the workman withdrew his dispute . He was re- employed by the Management w.e.f. 8th April , 1988 , but his services were again terminated on 26th May, 1988 , without giving him any reason , compensation and without holding any inquiry or giving any show - cause notice . Moreover , the respondents did so without terminating the settlement arrived at between the parties . Thus the termination of services of the workman was bad in law , unfair, unjust and illegal . He prayed for declaring the order of termination of services of the workman as bad in law and reinstating him with all benefits including of back wages .

The claim of the workman has been opposed by the Management on various grounds . It is their claim that the Management is not an Industry as defined by the Section 2-J of the Act, therefore , the reference is bad. On merit it is their submission that the workman was engaged as a daily wager in May , 1984 and he did not work for 240 days continuously in the year before the date of his dis- engagement , therefore , he has no right to claim . Claiming that the termination of the workman was legal , it is stated by theManagement that since the services of the workman were no more required , therefore, those were terminated on 27th May , 1988. Admitting that a settlement was arrived at between the parties , according to which the workers were categorized in two i.e one who had served the Management for 240 days , and two those who had not served them for that period . It was further agreed that those who were retrenched on 21st Dec. , 1987 will be re - employed in the same capacity, from the date they withdrew the cases filed against the Management . According to the agreement the 20workmen including the petitioner were to be re -employed on their withdrawing the cases . However , there was no guarantee that their services will not be terminated later on even if the work did not allow them to be retained in service. Thus their services could be terminated if the work was not available for them and the matter regarding the back wages wasto be referred to the Tribunal forjudicial , mutually by the parties . The present reference having not been made for back wages, therefore , this Tribunal has nojurisdiction to take contingency of that matter . Since the workman was not covered by any of the provisions of the Act , therefore , he is not entitled to any relief including under Section 25 - F of theAct.

I have gone through the file and have also considered the submissions made by the parties . Before considering the case of the parties on merit, I would like to dispose of the preliminary objection raised by the Management that since the Management is a research institute , not engaged in any commercial activity , therefore , is not an Industry and in view of that the workman cannot claim to be a workman. In my opinion there is no merit in this claim ofthe Management . In his statement , made by G.S Gaddu , Administrative Officer admitted that the Management produces grass , fruit , vegetable etc. and disposed of the same by auction besides by distributing the same among the workers on payment. The Hon ' ble Supreme Court in a famous full Bench of seven Judges decision in the case of Bangalore Water Supply and Sewarage Board Vs. A. Rajjapa reported as 1978 LAB I.C 467 , has laiddown the criteria to declare an establishment , corporation, institute an Industry . The test they have laid down, that in an establishment where there is a systematic activity , organized by co-operation between the employer and employees , for the production or distribution of goods and services , calculated to satisfy human wants and wishes , there is an Industry in the enterprise , prima facie , their Lordship further held that even the professions , clubs , educational institution cooperatives , research institutes and other kindered adventures , if fulfilled the triple test, are an Industry. In view of the evidence produced by the parties there remains no doubt that the Management was an Industry. The Management , by their conduct also , admitted themselves to be an Industry , as they submitted themselves. to the jurisdiction of the conciliation officer , to the jurisdiction of Labour Court, Ambala , and, therefore , it does not lie in their mouth now to claim that they are not an industry.

The workman in his replication disputed the claim of the Management and reiterated the claim made by him in the Claim Statement . The workman in his oral statement recorded on 8th April , 1993 also made a similar claim . He denied that he had not served for 240 days before the date of termination of his services . The witness for the Management , G.S Gaddu proved his affidavit and stood to the cross examination of the counsel for the workman . He admitted that the goods produced by the Management was distributed among the workers on market rates . He further admitted that for the sale of the timber , grass and

The claim of the workman is that the Management have terminated his services on 26th May , 1988 , in violation ofthe provisions of settlement arrived at between the parties during the course of trial of the dispute in the Labour Court , Ambala. The workman has in a way alleged the violation of agreement entered into between the parties under section 12of the Act . This section reads that whenever an Industrial Dispute exists or is apprehended, the conciliation officer shall hold conciliation proceedings . During the [ भाग II-खण्ड 3( ii) ]

proceedings , he shall make efforts about the settlement of the dispute and for that purpose , he will do all that he thinks fit for the purpose of bringing the parties to come to a fair and amicable settlement and if a settlement is arrived at he will send the report thereof to the appropriate Government together with a memo of settlement signedby the parties to the dispute. Copy of the settlement arrived at between the parties on 4th April , 1988 , is on record and the parties including the Management have admitted that a settlement was arrived at between the parties during the course of proceedings in the Labour Court at Ambala . The terms of settlement reads as under :

1. It is agreed by both the parties that all the workmen who have been retrenched on 21st Dec. , 1987 will be re -employed in the same capacity w.e.f. the date the Union or the individual workers , withdrew the cases under process before Labour Court/Tribunal , Ambala .

2. It is agreed by both the parties that the 20 workmen whose name exist in Annexure - II of the settlement will be employed provided the Union or the workman concerned withdrew their cases from the Labour Court at Ambala .

3. It is agreed by both the parties that the issue of back wages and continuity of service will be referred to the Tribunal mutually for judicial verdict for relief to the workers .

4. It is agreed by both the parties that the implementation report of the settlement willbe sent to the A.L.C (C ) , Rohtak by 30th April , 1988 .

The parties have admitted that after the settlement , theManagement had taken all the 20 workers , including the workman, back in service . The workman has claimed that he was taken back in service on 8th April , 1988. In reply to the claim made by the workman , in para No. 6 of his Claim Statement, the Management stated that the claim made by the workman was a matter of record . They did not deny that the workman was not taken back in service on 8th April , 1988 as a consequence of settlement arrived at between the parties . They also did not dispute that the services of the workman was disengaged on 26th May , 1988 , although they claimed, in para 3 of their Written Statement, that the reference under hand is regarding termination made on 3rd August, 1988 , which is not the claim even of the workman nor it is the reference received from the Government of India. Thus there is no dispute that the workman was re - employed on 8th April, 1988 and thathis services were terminated on 26th May , 1988 .

Hon'ble Supreme Court of India, in the cases of ShuklaMansika Industry Private Ltd. Vs. workmen ( 1977) 2 LLJ 339 and Patiala Central Cooperative Bank Ltd. Vs. Patiala Central Cooperative Bank Employees ' Union , reported as 1997 2 LLJ 631 , highlighted the object of Sub-Section 2 of Section 19 of the Act. According to their Lordships , the object of Section 19 of the Act is to ensure that once the settlement is arrived at, there prevails peace ,

7703

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

accord and cordiality between the parties , during the period agreed upon and if settlement does not require to be altered for some reasons or the other , the same climate prevails for by extension of the settlement by operation of law . There is option given to either party to terminate the settlement by a written intimation . After the expiry of two months from the date of such notice, the settlement will stand terminated . This is in accordance with the policy of settlement of industrial disputes which is the principle object underlying the provisions of the Act .

The plain reading of this provision shows that the settlement arrived at between the parties remains binding on them for a period ( 1 ) as agreed upon by the parties or (2) for six months from the day on which the memo of settlement was signed by them . In this case the parties did not agree to the period for which the settlement was to remain force . The agreement arrived at between them was thus to remain inforce during the period of six months from theday when the settlement came into force i. e. , 8th April , 1988. The settlement , therefore , could not be terminated by the parties before the expiry of six months . In this regard , I borrow the reasoning given in the case of Deccan Tile WorksVs. Their Workmen reported as ( 1960 ) 2 LLJ 298. It is also settled principle of law that the settlement so arrived at does not cease to be binding ipsofacto on the expiry of the period as mentioned in the Sub- section . It is also not open to the party to terminate or unilaterally repudiate the settlement without complying with the requirements of Sub- Section , (2) of the section 19 of the Act. In this regard , besides the case of Deccan Tile Works(Supra), State of KeralaVs. Antony Decruz reported as ( 1966) 1 LLJ 373 , may be referred to . Thus as per the provision of Section 19(2) of the Act and the law laid down by the Apex Court and theHigh Courts it was not open to the Managementto terminate the settlement arrived at between the parties on 4th April , 1988. The workman performed his part of the contractbywithdrawing his claim from the Labour, Court , Ambala . The Management re- employed him but terminated his service in violations of provisions of Section 19(2) of the Act. The Management has given the reasons that since they did not have the grants , therefore , there was no work available, for doing which , the workman could be engaged. Thus his services were terminated . This claim of the Management is without any merit rather it was in violation of the settlement arrived at between the parties . By their conduct the Management violated the sanctity of the settlement which was protected by Section 19( 2) of the Act. The action of the Management was illegal and it is declared so .

In terms of Sub Section 2 of the Section 19 of the Act, the Management could not terminate the settlement unilaterally . Since by the operation of the statute the workman is to be treated to be in the service of the Management for 8 months which means not less than 240 days within 12 months preceding the date of termination of his services , therefore, he was entitled to the protection under Section 25 - F of the Act as well. It is clear from the pleadings of the parties that the Management terminated [PART II -SEC . 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7704

the services of the workman in violation of Section 19 sub Clause 2 and Section 25 - F of the Act, therefore, their action was in violation of the provisions of the act and the same is declared as bad in law . The disengagement done by an act , which is declared as bad in law , is quashed.

In case the Management fails todo it, the workman shall also be entitled for the interest on the amount of compensation awarded to him at the rate of 9 % p.a from the date the Management appeared in this Tribunal i.e. on 12th Dec. , 1990. Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completion.

KULDIP SINGH, Presiding Officer

नई दिल्ली , 24 अगस्त, 2007

का.आ. 2716. औद्योगिक विवाद अधिनियम , 1947 (1947 का 14) की धारा 17 के अनुसरण में , केन्द्रीय सरकार सी एस डब्ल्यू सी आर टी आई रिसर्च सेन्टर के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं.- II , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 889/2005 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल -42012/113 /88 - डी- II ( बी ) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi, the 24th August , 2007

S.O. 2716. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 889/ 2005) of the Central Government Industrial Tribunal -cum- Laour Court No. II , Chandigarh as shown in the Annexure in the Industrial Dispute between the management of CSWCRTI Research Centre and their workmen , received by the Central Government on 24-8-2007 .

There is another aspect of the matter . Since the action of the Management in terminating the services of the workman has been declared bad in law and has been quashed, therefore , the workman is treated to be in the employment of the Management for full six months , from the date he was taken back in employment i.e. 8th April , 1988. As per the effect of the Section 19 ( 2 ) of the Act , the settlement could not be treated to have been terminated until the expiry of two months , from the date on which a notice in writing of the intention of the party to terminate the settlement is given. In this case no such notice was given by the Management and they unilaterally terminated the services ofthe workman within 6 months which they were not entitled to do under the statue . Thus the workman isto be treated. in the employment of the Management for further two months rather till date since the Management did not disclose their intentions to terminate the settlement even after the expiry of six months , from the date of the settlements . In this situation there is no merit in the claim ofthe Management that since the workman had not served them for 240 days preceding the date of his disengagement, therefore , he is not entitled to the protection under Section 25-F of the Act . The situation is rather in favor of the workman. In terms of Section 19 (2) of the Act , he is to be treated to be in the employment of the Management for at least 8 months from 8th April , 1988 as his services could not be terminated before that without a notice and the Management did not issue any such notice.

[No. L- 42012/ 113/88 - D- II (B) ] SURENDRA SINGH, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM -LANOUR COURT- II , CHANDIGARH

Inview of the discussion made above , I hold that the actionoftheManagement of CSWCRTI, Research Centre , Chandigarh interminating the services of the workman , dailypaidworker , w.e.f. 26th May, 1988 was unjust, unfair and illegal . Therefore , the workman is to be treated on the employment of the Management all through this period as ifthere was no order of termination of his services .

Presiding Officer : SHRI KULDIP SINGH

CASE I.D. No. 889/2k5 Registered On : 12-09-2005

Date of Decision : 11-06-2007

Petitioner

Baldev Singh

Versus

TheManagement of CSWCRTI Research Centre , Sector - 27, Madhya Marg , Chandigarh and Another Through its Office Incharge

Respondent

APPEARANCE

For the Workman : Mr. Jasvinder Kumar Bakshi Advocate

The next question which arises is as to what relief the workman is entitled to . It is also a fact that he did not work forthe Management from the date his services were terminated in the year 1998. He has also not claimed that during this period he has remained not gainfully engaged. Thus he is not entitled to the back wages , but he is entitled to all service benefits including his regularization as if he was entitled for that what for to the termination of his services by the Management . He is also entitled to compensation for the sufferings at the hands of the Management during this period and for all the service benefits he was entitled to . I , therefore , direct the Management to pay an amount of Rs.50,000/- as one time compensation to him for the suffering he received. The Management is directed to examine the case of the workman within three months from the date this award becomes enforceable to find out as to what benefits he is entitled to . For the Management: Mr. M. L. Basur , Advocate [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

7705. AWARD

This a reference under Section 10 of the I.D Act, 1947 , for short " Act " received from Government of India , Ministry of labour , vide their no . - L-42012/ 113/ 88 - D- II (B ) , dated9th Nov. , 1989. The reference reads as under :

"whether the action of the Management of CSWCRTI , research centre , Chandigarh in terminating the services of Shri Baldev Singh S/o . Shri Tota Ram daily paid worker w.e.f. 26th May , 1988 isjust, fair and legal ? If not what relief the worker concerned is entitled to ? "

1st August , 1986. Admitting that a settlement was arrived at between the parties , according to which the workers were categorized in two i.e one who had served the Management for 240 days , and two those who had not served them for that period . It was further agreed that those whowere retrenched on 21st Dec., 1987 will be re -employed in the same capacity from the date they withdrew the cases filed against the Management . According to the agreement the 20 workmen including the petitioner were to be reemployed on their withdrawing the cases . However , there was no guarantee that their services will not be terminated later on even if the work did not allow them to be retained in service . Thus their services could be terminated if the work was not available for them and the matter regarding the back wages was to be referred to the Tribunal for judicial , mutually by the parties . The present reference having not been made for back wages , therefore , this Tribunal has no jurisdiction to take contingency of that matter . Since the workman was not covered by any of the provisions of the Act, therefore , he is not entitled to any relief including under Section 25 - F of the Act .

The notice of the reference was given to the parties who appeared through their counsel and filed their pleadings in the shape of statement of claim and replication by the workman, Written Statement by the Management . Theworkman supported his claim with his affidavit whereas the Management tendered the affidavit of Shri . G.S Gaddu, Assistant Admn . Officer. The parties have also placed on record. A copy of the agreement claimed to have been entered into between the parties in presence of the Assistant Labour Commissioner ( C) , Rohtak on 4th August , 1988 . They have also produced copies of other documents besides photo copy of the judgments of the Hon'ble Supreme Court and that of Punjab and Haryana High Court .

The claim of the workman is that he had joined service with the Management on 1st October , 1957 ; and that his services were terminated by the Management . Thereupon the matter was taken to the Labour Court, Ambala. During the proceedings in the said Labour Court, the parties arrived at a settlement in presence of the ALC by which the Management agreed to re - employ the workers including the petitioner , total 20 in number . As a follow up of that agreement the workman withdrew his dispute . He was re- employed by the Management w.e.f. 8th April , 1988 , but his services were again terminated on 26th May , 1988 , without giving him any reason , compensation and without holding any inquiry or giving any show cause notice . Moreover , the respondents did so without terminating the settlement arrived at between the parties . Thus the termination of services of the workman was bad in law , unfair , unjust and illegal . He prayed for declaring the order oftermination of services of the workman as bad in law and reinstating him with all benefits including of back wages .

Theworkman in his replication disputed the claim of the Management and reiterated the claim made by him in the Claim Statement . The workman in his oral statement recorded on 8th April 1993 also made a similar claim . He denied that he had not served for 240 days before the date of termination of his services . The witness for the Management , G.S Gaddo proved his affidavit and stood to the cross examination of the counsel for the workman . He admitted that the goods produce by the Management was distributed among the workers on market rates . He further admitted that for the sale of the timber , grass and fruits , tenders used to be called from the market . He admitted that an agreement was arrived at between the parties on 4th April , 1988 and before terminating his services , no notice was given to the workman , and all nor to his Union , that no work was available as no funds were available , therefore, no work could be done and therefore there was no requirement of the workman . He further stated that the workmen were given assurance that whenever the job was available , it will be given to them and many workers had retired and many were made regular ; and that on the retirement of senior workmen the juniors were made regular . He however , denied that there was vacancy of unskilled workers available as a result of regularization of the seniors and on the retirement of some of them .

The claim of the workman has been opposed by the Management on various grounds . It is their claim that the Management is not an Industry as defined by the Section 2-J of the Act, therefore , the reference is bad . On merit it is their submission that the workman was engaged as a daily wager in May , 1984 and he did not work for 240 days continuously in the year before the date of his disengagement therefore, he has no right to claim . Claiming that the termination of the workman was legal , it is stated by the Management that since the services of the workman were no more required , therefore , those were terminated on

I have gone through the file and have also considered the submissions made by the parties . Before considering the case of the parties on merit , I would like to dispose off the preliminary objection raised by the Management that since the Management is a research institute , not engaged in any commercial activity , therefore , is not an Industry and in view of that the workman cannot claim to be a workman. In my opinion there is no merit in this claim of the Management . In his statement, madebyG.S Gaddu , 3725Gl/07-34 7706

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

Administrative Officer admitted that the Management produces grass , fruit, vegetable etc. and disposed off the same by auction besides by distributing the same among the workers on payment . The Hon ' ble Supreme Court in a famous full bench of seven judges decision in the case of Bangalore Water Supply and Sewarage Board Vs. A. Rajjapa reported as 1978 LAB I.C 467, has laid down the criteria to declare an establishment, corporation , institute an Industry . The test they have laid down , that in an establishment where there is a systematic activity , organized by co-operation between the employer and employees , for the production or distribution of goods and services , calculated to satisfy human wants and wishes , there is an Industry in the enterprise , primafacia . Their Lordship further held that even the professions , clubs , educational institution cooperatives , research institutes and other kindered adventures , if fulfilled the triple test, are an Industry . In view of the evidence produced by the parties there remains no doubt that the Management was an Industry. The Management, by their conduct also , admitted -themselves to be an Industry , as they submitted themselves to the jurisdiction of the conciliation officer , to the jurisdiction of Labour Court, Ambala , and, therefore , it does not lie in their mouth now to claim that they are not an industry.

The claim of the workman is that the Management have terminated his services on 20 May, 1988 , in violation oftheprovisions of settlement arrived at between the parties during the course of trial of the dispute in the Labour Court, Ambala. The workman has in a way alleged the violation of agreement entered into between the parties under section 12 ofthe Act. This section reads that whenever an Industrial Dispute exists or is apprehended, the conciliation officer shall hold conciliation proceedings . During the proceedings , he shall make efforts about the settlement of the dispute and for that purpose , he will do all that he thinks fit for the purpose of bringing the parties to come to a fair and amicable settlement and if a settlement is arrived at he will send the report thereof to the appropriate Government together with a memo of settlement signed by the parties to the dispute . Copy of the settlement arrivedat between the parties on 4th April , 1988, is on record and the parties including the Management have admitted that a settlement was arrived at between the parties during the courseofproceedings in the Labour Court at Ambala . The terms of settlement reads as under:-

1. It is agreed by both the parties that all the workmen who have been retrenched on 21st Dec. , 1987 will be re - employed in the same capacity w.e.f. the date the Union or the individual workers , withdrew the cases under process before Labour Court /Tribunal Ambala .

2. It is agreed by both the parties that the 20 workmen whose name exist in Annexure - II of the settlement will be employed provided the Union or the workman concerned withdrew their cases from the Labour Court at Ambala .

3. It is agreed by both the parties that the issue of back wages and continuity of service will be referred to the Tribunal mutually for judicial verdict for relief to the workers .

4. It is agreed by both the parties that the implementation report of the settlement will be sent to the A.L.C ( C), Rohtak by 30th April , 1988 .

The parties have admitted that after the settlement , the Management had taken all the 20 workers , including the workman, back in service . The workman has claimed that he was taken back in service on 8th April , 1988. In reply to the claim made by the workman , in para no.6 ofhis Claim Statement, the Management stated that the claim made by the workman was a matter of record . They did not deny that the workman was not taken back on service on 8th April , 1988 as a consequence of settlement arrived at between the parties . They also did not dispute that the services of the workman was disengaged on 26th May , 1988 , although they claimed , in para 3 of their Written Statement, that the reference under hand is regarding termination made on 3rd August , 1988 , which is not the claim even of the workman nor it is the reference received from the Government of India . Thus there is no dispute that the workmen was re - employed on 8th April , 1988 and that his services were terminated on 26th May, 1988.

Hon'ble Supreme Court of India , in the cases of Shukla Mansika Industry Private Ltd. Vs. workmen ( 1977) 2 LLJ 339 and Patiala Central Cooperative Bank Ltd. Vs. Patiala Central Cooperative Bank employees Union , reported as 1997 2 LLJ 631 , highlighted the object of sub- section 2 of Section 19 of the Act . According to their Lordships , the object of Section 19 of the Act is to ensure that once the settlement is arrived at, there prevails peace, accord and cordiality between the parties , during the period agreed upon and if settlement does not require to be altered for some reasons or the other , the same climate prevails for by extension of the settlement by operation of law. There is option given to either party to terminate the settlement by a written intimation. After the expiry of two months from the date of such notice , the settlement will stand terminated . This is in accordance with the policy of settlement of Industrial disputes which is the principle object underlying the provisions of the Act .

The plain reading of this provision shows that the settlement arrived at between the parties remains binding onthem for aperiod ( 1 ) as agreed upon by the parties or (2 ) for six months from the day on which the memo of settlement was signed by them . In this case the parties did not agree to the period for which the settlement was to remain force. The agreement arrived at between them was thus to remain in force during the period of six months from the day when the settlement came into force i.e. 8th April , 7707 [ भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

givenby the Management and they unilaterally terminated the services of the workman within 6 months which they were not entitled to do under the statue . Thus the workman istobe treated . in the employment of the Management for further two months rather till date since the Management did not disclose their intentions to terminate the settlement even after the expiry of six months , from the date of the settlements . In this situation there is no merit in the claim oftheManagement that since the workman had not served them for 240 days preceding the date of his disengagement , therefore , he is not entitled to the protection under Section 25-F of the Act . The situation is rather in favour of the workman. In terms of Section 19(2) of the Act , he is to be treated to be in the employment of the Management for at least 8 months from 8th April , 1988 as his services could not be terminated before that without a notice and the Management did not issue any such. notice.

Inview of the discussion made above , I hold that the action of the Management of CSWCRTI , Research Centre , Chandigarh in terminating the services of the workman , daily paid worker , w.e.f. 26th May , 1988 was unjust , unfair and illegal . Therefore , the workman is to be treated on the employment of the Management all through this period as ifthere was no order of termination of his services .

1988. The settlement, therefore , could not be terminated by the parties before the expiry of six months . In this regard , I borrow the reasoning given in the case of Deccan Tile Works Vs. Their workmen reported as ( 1960 ) 2LLJ 298. It is also settled principle of law that the settlement so arrived at does not cease to be binding ipso facto on the expiry of the period as mentioned in the sub- section . It is also not open to the party to terminate or unilaterally repudiate the settlement without complying with the requirements of sub- Section, 2 of the 19 of the Act . In this regard , besides the case of Decan Tile Works (Supra ) , State of Kerala Vs. 'Antony Decruz reported as (1966) 1 LLJ 373 , may be referred to . Thus as per the provision of Section 19 (2 ) of the Act and the law laid down by the Apex Court and the High Courts it was not open to the Management to terminate the settlement arrived at between the parties on 4th April , 1988. The workman performed his part of the contract by withdrawing his claim from the Labour Court Ambala . The Management re - employed him but terminated his service in violations of provisions of Section 19 (2) of the Act . The Management has given the reasons that since they did not have the grants therefore , there was no work available , for doing which, the workman could be engaged . Thus his services were terminated . This claim of the Management is without any merit rather it was in violation of the settlement arrived at between the parties . By their conduct the Management violated the sanctity of the settlement which was protected by Section 19(2 ) of the Act . The action of theManagement was illegal and it is declared so .

In terms of sub- section 2 of the 19 of the Act , the Management could not terminate the settlement unilaterally . Since by the operation of the statute the workman is to be treated to be in the service of the Management for 8 months which means not less than 240 days within 12 months preceding the date of termination of his services , therefore , he was entitled to the protection under Section 25 - F of the Actas well . It is clear from the pleadings of the parties that the Management terminated the services of the workman in violation of Section 19 sub Clause 2 and Section 25 - F of the Act , therefore , their action was in violation of the provisions of the act and the same is declared as bad in law . The disengagement done by an act , which is declared as bad in law , is quashed.

The next question which arises is as to what relief the workman is entitled to . As per his own claim he had joined service with the Management on 1st October , 1957. If he was minimum of 18 years of age at that time by now he is round about 70 years of age and cannot be presumedto be eligible for the service of the Management . It is also a fact that he did not work for the Management from the date hisservices were terminated in the year 1998. He has also not claimed that during this period he has remained not gainfully engaged . Thus he is not entitled to the back wages , but he is entitled to all service benefits including his regularization as if he was entitled for that what for to the termination of his services by the Management . He is also entitled to compensation for the sufferings at the hands oftheManagement during this period and for all the service benefits he was entitled to . I , therefore , direct the Managementto pay an amount of Rs.50,000 as one time compensation to him for the suffering he received . The Management is directed to examine the case of the workman within three months from the date this award becomes enforceable to find out as to what benefits he is entitled to . In case the Management fails to do it , the workman shall also be entitled for the interest on the amount of compensation awarded to him at the rate of 9 % p.a from the date theManagement appeared in this Tribunal i.e. on 12th Dec. , 1990. Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completian.

There is another aspect of the matter . Since the action of the Management in terminating the services of the workman has been declared bad in law and has been quashed, therefore , the workman is treated to be in the employment of the Management for full six months , from the date he was taken back in employment i.e. 8th April , 1988. As per the effect of the Section 19 (2) of the Act , the settlement could not be treated to have been terminated until the expiry of two months , from the date on which a notice in writing of the intention of the party to terminate the settlement is given . In this case no such notice was

KULDIP SINGH, Presiding Officer 7708

[PART II -SEC . 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

नई दिल्ली, 24 अगस्त, 2007

का.आ. 2717.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार सी पी डब्ल्यू डी के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. II , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 815/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

The notice of the reference was given to the parties . The workmen filed his claim Statement , to which the Management filed the reply . The workmen filed replication and his affidavit , whereas the Management filed the affidavits of S/Sh . Rajesh Banga and B. D. Bansal, Executive Engineers . The Management also filed the affidavit of Sh . Subhash Solanki and that of the Avtar Singh , Executive Engineer but did not produce them as a witness . Besides the workman , witnesses of the Management namely B. D. Bansal and Rajesh Banga came , in the witness box and proved their affidavits .

[सं. एल -42011 /55/89-- आईआर(डी.यू. ) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi , the 24th August, 2007

S.O. 2717. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref . No. 815/ 2005) of the Central Government Industrial Tribunal -Cum- Labour Court No. II, Chandigarh as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of C.P.W.D. and their workmen, which was received by the Central Government on 24-8-2007.

[No. L-42011/55/89- IR(DU) ]

SURENDRA SINGH , Desk Officer

Itmay be noted that on 16th August, 1999 , one of theworkman, Puran Chand, filed an application that since he has been engaged and confirmed on a regular post in the Ranjeet Sagar Dam , therefore , he does not want to prosecute his case; and that his case may be dismissed as withdrawn . His application was attested by the Sarpanch ofhis village. His case , therefore , was treated to have been withdrawn by him . However the court directed that the claim ofJaswinder Singh , another workman , shall proceed and will be considered on merit. It was also ordered that casebe listed for further proceedings i.e. for the evidence of the workman, in this way the claim Sh . Puran Chand was treated to have been withdrawn . Now the claim of other workman Jaswinder Singh remains to be considered on merit i this reference .

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT- II CHANDIGARH

Presiding Officer :

Shri Kuldip Singh

Case I. D. No. 815/2k5

Registered on : 7-9-2005

Date ofDecision : 17-5-2007

: Petitioner

Jaswinder Singh C/o CITU Office Gandhi Chowk , Pathankot- 145024 (Punjab )

Versus

Sh . Jaswinder Singh has claimed that he was appointed as Beldar on a salary of Rs . 360/- per month on 9th July, 1979 and he served them upto 24th May, 1991 , on which day his services were terminated in violation of provisions of the I.D. Act , 1947 , hereinafter to be referred as "Act" . That the workman was not given any show cause notice nor was charge sheeted. No inquiry was held against him before the termination of his services which act of the Management was malafide and an unfair labour practice. That the juniors of the workman were retained by the Management whereas his services were terminated. They also engaged fresh hands without providing opportunity to the workman to serve them .

:Respondent

The Executive Engineer, Madhopur, Central Division, CPWD, Madhopur

APPEARANCE

For the Workman

: Mr. M. K. Dogra Advocate

: Mr. Arun Walia

For the Management

Advocate

AWARD

The Government of India vide their order No. L- 42011/ 55/89- IR(DU) dated 29/30th Nov. , 1994 referred the following dispute for the adjudication of this Tribunal :---

"Whether the action of the Management of Executive Engineer , Madhopur Central Division , C. P.W.D. Madhopur in terminating the service of Sh . Puran Chand and Sh . Jaswinder Singh , Muster rolls workers is legal and justified ? Ifnot, to what relief the workmen are entitled to? "

The claim of the workman has been opposed by the Management stating that the workman was engaged on muster rolls w.e.f. 9th July, 1979 but he himself left the work on 1st July , 1981 , without any information to the Management admitting that the workman was engaged as aBeldar on a monthly salary of Rs . 60/- per month, they denied that his services were terminated by the Management with malafide intensions or by resorting to unfair labour practice . According to them the workman was engaged on work need basis on muster rolls and he suddenly left the job without his disclosing his nearabouts , therefore , he was presented to have left the job on 1st July, 1981. They further stated that the workman had not served theManagement for 240 days , therefore , no notice under Section 25 - F of the Act was required to be issued to him nor he is entitled to relief under that provision. Denying that the workman ever approached the Management for relief they have claimed that no such representation was [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

7709 made except the demand notice . They also denied that any junior of the workman was retained while the services of theworkman were terminated or the Manatgement recruited any fresh hands without giving option of working to the workman.According to them, there is no basis for the claim oftheworkman, therefore , the claim same may be rejected.

In the replication the workman only reiterated the facts already stated by him in the statement of claim . He contested the claim of the workman that he himself had left the job on 1st July, 1991 and stated that during his engagement he never absented from duty . Thus he served theManagement continuously for more than 240days .He has further claimed that the Management had admitted before the CAT that the workman had served them for 240 days , but they did not comply with the provisions of Section 25 -F of the Act before terminating his services, therefore the disengagement of the workman is bad in law and the same may be declared so.

and statement made before the Court, the workman has failed to produce any evidence that he was disengaged from service on 24th May , 1981. The Management has admitted that he had served the Management upto 1st July, 1981. On their part , they have not produced any record to show that the workman had absented from his duty or that he had abandoned the job. The two witnesses examined by them now here claimed that the workman was serving under them , when he abandoned the job . TheManagement admitted that no notice was issued to the workman after , as is claimed by them , he stopped coming for the work. They only gave the explanation that since the workman was working on the muster rolls and when he din not report for duty it was presumed that he has abandoned the job . The claim oftheManagement is notjustified in the face of provisions of Section 25 - F of the Act as they have failed to show that the workman did not continuously served them for 240 days 12 months before 1st July, 1981 , therefore , it has to be taken that the workman had served the Management for 240 days 12 months preceding the day whenhis services are claimed to be disengaged. However, the question still remains whether it was the case of disengagement or abandonment of service . it is on record that no notice nor any charge sheet was served upon him nor any inquiry was held . The Management also admitted that through their witnesses that the workman has not paid any compensaton before his disengagement .

The workman, in his statement , recorded on 24th , April, 2004 stated that his juniors Dev Raj , Raj Kumar , Mohan Lal and Surinder Kumar , who are posted at different places have been retained by the Management whereas they terminated his services . He further claimed that he was not given any termination notice ; that he is unemployed right from the day of termination of his services and is dependent upon the pension of his father . The witnesses oftheManagement proved their affidavits exhibit M- 1 and 2. Shri Bansal , when cross examined stated that the four persons Dev Raj , Raj Kumar and Mohan Lal were not appointed after the termination of the workman . In the same breath he stated that only Dev Raj and Raj Kumar were appointed after the termination of services of the workman , who are still in service . Rajesh Banga, another witness of the Management admitted that no notice was served upon the workman as he himself had abandoned job. He was also not paid compensation nor any inquiry was held against him. He further stated that nojuniors of the workman such asDev Raj , Surinder , Mohan Lal are working with the Management. He again stated they are working but they are notjuniors to the workman .

As regards the question of abandonment I find no evicence to show that the workman had abandoned the job as is claimed. Since the workman is shown to have worked for 240 days for the Management 12 months before the termination of his services he earned a statutory right and protection of Section 25 - F of the Act . The Management did not hold inquiry to find out whether the workman had abandoned the job or was prevented by circumstances , beyond his control to report for duty or it was a case of termination of his services . In the absence of any such evidence it has to be taken that it was a case of termination of his services as is claimed by the workman . The Management has admitted that they had not followed the provisions of Section 25 - F of the Act as neither they gave any notice to the workman nor paid him retrenchment compensation, therefore , the disengagement of the workman was the termination without following the provisions of the Act . The termination is held to be illegal , bad in law and against the provisions of the Act and principles of naturaljustice.

The disputed question which comes for consideration of this Tribunal now is whether the services of the workman were terminated by the Management, without following the provisions of the Act and the principles of natural justice or that he had abandoned the job himself without informing the Mangement . The Management has also claimed that the workman had not served the Management for 240 days , before he left the job, a fact which is contested by the workman . If we go through the pleadings of the parties I find that the Management admitted, both in their Written Statement as well as in the affidavits of their witnesses that the workman had served the Management from 9th July , 1979 to 1st July, 1981. They claimed that the workman did not serve them for 240 days before leaving the job whereas the workman claims that Management had terminated his service illegally on 24th May, 1981. Except his own affidavit

The next thing to be seen is whether the Management further violated the provisions of the Act by retaining the juniors of the workman in service while terminating his services . The witnesses of the Management have made contradictory statement in this regard but the sum and substance of their statements is that Messers . Dev Raj , Raj Kumar , Mohan Lal and Surinder Kumar still working with the Management although Sh . B. D. Bansal , stated that only two of them are working. The Management has claimed that the persons who are working are not juniors to the [PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

7710

workman, although Mr. Bansal admitted that Dev Raj and Raj Kumar were appointed after the workman was relieved after job . They have , however , not produced an evidence to show that the Management had given option to the workman to work before they engaged Dev Raj and Raj Kumar who are still working . On this account also the Management has failed to show that before appointing Dev Raj and Raj Kumar , they have given option to the workman , as was required under Section 25- F of the Act. The Management has further failed to produce any evidence to show that the other two persons Mohan Lal and Surinder Kumar were not juniors to the workman, although Rajesh Banga , another witness of the Management, claimed that they are not working with the Management . In order to substantiate their claim the Management produced any evidence such as the seniority list, the muster rolls and any accounts statement to show as to since when those persons were engaged and whether they were engaged before the engagement of the workman or thereafter. The Management has failed on this account also .

After going through the pleadings of the parties and evidence available on record I am of the opinion that the action of the Management, Executive Engineer , CPWD, Madhopur in disengaging the workman w.e.f. Ist July , 1981 was illegal and unjustified. They have failed to prove that it was not the case of illegal termination of service of the workman but the case of abandonment . Therefore , I quash the termination of the workman and treat him to be in service as if there was no order of termination of his services . The Management also violated the provisions of Section 25 - F ofthe Act, by retaining his juniors or in the alternative by engaging fresh hands without giving option to the workman to serve the Management .

Now the question arises as to what relief the workman is entitled to . Neither it is claimed not shown that the workman was recruited by duly established process by the Management . It is claimed by them that the workman was engaged on muster rolls , therefore , it cannot be stated that his engagement was by a regular process establised by law . In the light ofjudgement of Hon'ble Supreme Court inthe case of Secretary of State of Karnataka Vs. Uma Devi , reported as 2006 ( SCT 462 ) , the reinstatement of the workman cannot be ordered . Even otherwise his disengagement had been done about 26 years ago and what was his age at that time and whether he is still fit for the service of the Management is a question which cannot be answered in the absence of evidence on the file . The Management has claimed that there is work with them for which the workman can be engaged . The fact remians that the workman has suffered as a result of the illegal act of the Management. They did not given him the compensation , for which he has contested all these years . Taking all the circumstances into the consideration I hold that the workman is entitled to the relief and I direct the Management to pay him Rs . 50,000 as one time compensation for the wrong done to him by the Management by terminating his services without following the provisions of the Act and natural justice. The Management is given thre months ' time to pay this amount to the workman from the day the award becomes enforceable failing which the workman shall also be entiltled to interest on the amount awarded to him as compensation @ 9 % D.A from the date the Management filed their Written Statement , that is , 30th May , 1995 as they had known about the claim of the workman on that day but still they did not try to remedy the wrong . The award is passed in favour of the workman . Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after duecompletion .

KULDIP SINGH, Presiding Officer नई दिल्ली, 24 अगस्त, 2007

का.आ. 2718.-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. II , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 294/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल -40012/459/2000- आईआर (डी.यू. ) ] सुरेन्द्र सिंह, डेस्क अधिकारी New Delhi , the 24th August, 2007

S.O. 2718. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 294/ 2005) of the Central Government Industrial Tribunal -cum- Labour Court , No. II, Chandigarh 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 24-8-2007 .

[No. L-40012/459/2000- IR (DU)] SURENDRA SINGH , Desk Officer ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM - LABOUR COURT - II, CHANDIGARH

Shri Kuldip Singh

: Petitioner Presiding Officer : Case I. D. No. 294/2005 Registered on : 11-08-2005 Date of Decision : 24-5-2007 Shiv Singh Thapa S/o Sh . Manohar Singh C/o BMS Office , 118 -A, Sector-30-B , Chandigarh - 160001.

Versus

:Respondent Principal General Manager , Telecom, Sector- 18 , Chandigarh .

[ भाग II-खण्ड 3 ( ii ) ]

7711

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

APPEARANCE

For the Workman

: Mr. M. R. Dhiman , A.R.

: Mr. G. C. Babbar , Advocate

For the Management

AWARD

that the Management had maintained the seniority lists of worker as they did not appoint any directly as there was banon direct recruitment . Denying all other averments made inthe statement of claim it is stated by the Management that the workman has no claim to make against the Management as by his own saying he has admitted that he was enagaged through a contractor . They have supported their claim with a copy of agreement, by which , as is claimed, the management had allotted the contract of supplying secutrity guards to them by the contractor .

The workman continues to be absent. On the last date of hearing his representative stated that he has no instructions to appear in the case . Thereupon fresh notice under registered cover vide postal receipt No. A- 207 dated4th ofMay , 2007 was issued to him . The registered cover carrying the notice has not been received back unserved nor the workman is present . The presumption is that the workman has received the notice but is not present. The perusal of the interim orders show that the workman never appeared in the case in person . From this I am satisfied that the workman is no more interested in his case . That is why he has lost contact with his representative and has also not responded to the notice issued by this Tribunal under registered cover .

The persusal of the file shows that the workman has not produced any evidence in support of his claim nor even his affidavit whereas the management has placed on record the copy of agreement supporting their version . As stated above the workman also stopped appearing in the case through his representative and he never appeared in person. Thus there is no evidence on record to support the claim of the workman that he was engaged by the Management or his services were terminated by them . The workman has , therefore , utterly failed to show that he was recruited by the Management and his services were terminated by them or that he had served the Management for 240 days in twelve months preceding the date of Termination of his services by the Management and they , did not follow the provisions of Industrial Disputes Act, 1947 before terminating his services . In my opinion the workman is not entitled to any relief. The reference is answered against him . Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completion.

KULDIP SINGH, Presiding Officer नई दिल्ली, 24 अगस्त , 2007

का.आ. 2719.-औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार सीनियर सुपरिन्टेन्डेन्ट आफ पोस्ट आफिसेस के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. II , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 1115/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल-40012/240/1999- आईआर (डी.यू. ) ] सुरेन्द्र सिंह , डेस्क अधिकारी TheGovernment of India vide the order Ministry of Labour No. L-40012/459 /2000/IR (DU) dated 1-2-2001 desired to know whether the action of the Management of Department of Telecom , Chandigah in terminating the services of Sh . Shiv Singh Thapa S/o Sh . Manhor Singh w.e.f. 1-3-99 is just and legal ? If not, to what relief the workman is entitled ? The workman in response to the notice of the reference filed statement of claim and stated that he was appointed as Security Guard in 10th of Feb. , 1998 on a monthly salary of rupees 1900 through M/s. Sainik Industrial Guards , 801 , Sector 2, Panchkulla and he worked for the management till 28th of February , 1999 ; and thathis services were terminated w.e.f. 1st of March , 1999 without any notice , charge sheet or enquiry nor he was paid any retrenchment compensation or wages for the notice period . The Management retained juniors of the workman in service and also recruited fresh hands without providing opportunity to the workman to serve . The Contractor issued a bogus transfer order on 10th of June , 1999 just to get an escape from the notice issued by ALC ( C ) , Chandigarh . The enquiries revealed that neither there was any post available on which the workman was transferred. nor there existed any rules to make such transfers . He has further claimed that there was no contractual bindings between the workman and the contractor and the workman had worked directly under the Management .

New Delhi , the 24th August , 2007

S.O. 2719.In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. 1115/ 2005) of the Central Government Industrial Tribunal - cum- Labour Court No. II , Chandigarh as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Sr. Supdt . of Post Offices and their workmen, which was received by the Central Government on 24-8-2007 .

[No. L-40012/240/ 1999 - IR (DU) ] SURENDRA SINGH , Desk Officer The Management in their reply has denied the relationship of employer and empoyee between the parties . According to them the management had engaged a Contractor to provide Seucurity Guards to them for its installations and offices and the payment of wages was made directly to the contractor . Management is unable to say whether the workman had worked for them through the contractor during the relevant period since record of his service if at could be only with the contractor and not with them. They denied that the workman was ever engaged by them or terminated his services . They further denied 7712

[PART II SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT - II CHANDIGARH

Presiding Officer : Shri Kuldip Singh

Case I. D. No. 1115/2005

Registered on : 22-09-2005

Date ofDecision : 7-06-2007

Raj Kumar (Ex- EDPM)

:: Petitioner VPO Sultana , district Panipat (Haryana)

Versus

Senior Superintendent Post Offices ,

Karnal Division , Karnal .

Respondent

APPEARANCE

Forthe Workman

: Mr. R.P. Rana, Advocate

: Mr. K. K.Thakur , Advocate For the Management

AWARD

The Government of India vide their order No. L-40012/ 240/1999/IR (DU) dated 21st October , 1999 desired to know the following :--

"Whether the action of the Sr. Superintendent of PostOffices , Karnal Division , Karnal in imposing punisment of dismissal from service upon Sh . Raj Kumar , Ex -EDPM, w.e.f. 17th August , 1996 is just and legal ? If not, to what relief the workman is entitled ? "

The notice of the reference was given to the parties who appeared through their Counsel . The workman filed the Claim Statement , replication and his affidavit. The Management filed Written Statement and opposed the claim of the workman . They supported their submissions with the affidavit of Sh . Rameshwar Dass , Senior Superintendent ofPost Offices besides with the photo copies of number of documents and the inquiry poceedings , held against the workman . They also submitted Written Arguments which are rebutted by the workman by his Written Arguments , duly supported by the judgements of different High Courts of the country and that of supreme Court of India.

Ihave gone through the file and have also considered the submissions made by the Counsel for the parties , both in writing and orally .

The claim of the workman is that he was appointed as Extra Departmental Branch Postmaster on 25th October , 1982 and he served the Management upto 17th August , 1996 when his services were disengaged . He was again disengaged on 19th February. , 1997 since the Appellate Authority found the first disengagement illegal . The disengagement of the workman 2nd time was bad in last since a person, who was not in service or under suspension, could not be removed from service as he was not holding any post on the day; that the inquiry held against him was bad in law , as infact no inquiry was held. He was also not allowed to engage a defence representative or lawyer to defendhimself on the inquiry. The inquiry officer obtained his confession under the threat of action through the police . He acted as if the spokesman of his department and thus acted partially . Even otherwise domestic inquiry claimed to be held was infact no inquiry as no witness was examined nor any proceedings were recorded; that no loss was caused to the Management as a result of the conduct ofthe workman, therefore , also the punishment awarded to him was bad in law . In short the claim of the workman is thathis removal from service , after the so called domestie. inquiry was bad in law as no inquiry was held nor he was given opportunity to defend himself or take the help of defence representative or lawyer . Moreover , no monetry loss was caused to the Management as a result of the misconduct alleged. Therefore, the extreme penalty of removal from service awarded . was bad in law, disproportionate , so the same cannot be sustained. He has prayed for setting aside his removal from service and grant ofall service benefits , reinstatement in service and back wages etc.

The Management has opposed the claim of the workman. According to them the workman , in his capacity as EDBPM Sultana received Rs . 2000 for depositing in Saving Bank A/C No. 1372458. However made an entry of money in the pass book of the depositor but did not account. for that amounts and when the depositor tried to withdraw the money , the workman persuaded him not to doand ultimately the depositor had to go to Panipat , Thermal PostOffice , so as to withdraw his money . By that time the workman had deposited the monay , so received, on 31st October, 1995. The depositor made the complaint in writing . During the investigation it was found that the workman had committed other embezzlement also like of Rs . 280 in the MSY account No. 11172 , as he did not account for that amount received on 14th January , 1995 and deposited that amount on 15th March , 1996. The workman therefore , was found having committed misconduct and so the departmental inquiry was initiated against him , in which the workman admitted his guilt but tried to justify his conduct, by making reference to his family problems . Since the confession was not unqualified , therefore , an oral inquiry was held in which the workman made statement in writing , on 27th June , 1996. Thereupon he was found to have done the misconduct . He was then imposed the punishment of removal from service vide order dated 12thAugust, 1997. Upon Appeal , the case was remanded back to the inquiry officer for reconsideration . The directions of the Appellate Authority was complied with and the copy of the inquiry report was given to the workman who was also given opportunity to make representation . The Appelllate Authouity considered the representation made by the workman and finding no merit in that , approved the order of dismissal of the workman from service. It is also the claim of the Management that since the workman had opted to approach the alternative remedy under the CAT Act , he was not entitled to take resort to remedy under the Industrial Dispute Act , 1947 , CAT Act .

With regard to the averments made in the Claim Petition , it is stated by the Management that the grounds taken by the workman , to challenge the order of his dismissal , are baseless . The law is settled that where the 7713 [भाग II-खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

Appellate Authority issues direction to the Disciplinary Authority for reconsideration of the case the Delinquent Official is treated to be under suspension from the day of passing of the order by the Appellate Authority therefore , the contention of the workman that the order of his dismissal dated 19-2-1998 was bad in law is of no consequence . Supporting that the inquiry officer was justified in not conducting the inquiry further after the workman made the confession it is stated by them that the inquiry officer was justified in not proceeding further in the matter . They denied that the confession was obtained under threat . Claiming that the affidavits obtained by the workman, after the conclusion of the inquiry , were of no value, since the workman had himself admitted the charges during the course of inquiry . It is also claimed by them that the Management did not violate the provisions of EDA (Conduct and Service Rules , 1964) .

The workman filed the replication in which he took the plea that he had every right to withdraw his petition from the CAT, as he had the option to seek relief under the I.D Act . Denying that the history of the case given by the Management is correct it is stated by the workman that there was no basis of the allegations levelled against ; that no proper inquiry was held against the workman . There was also nojustification for the finding ofthe inquiry officer which were arrived at on the basis of the preliminary inquiry. No procedure was followed while holding the inquiry No procedure was fallowed whileing the inquiry so the inquiry conducted was not proper .

The workman supported his claim by his affidavit whereas the Management filed the affidavit of Shri RameshwarDass in support of their claim .

After going through the pleading of the parties , I find that there is no dispute that the workman has served the Management as Extra Departmental Branch Postmaster . w.e.f 25th October , 1982 till 19th Feb. , 1997 , when his services were terminated for this misconduct . The Management has claimed that he order of the removel of the workman was done after holding an inquiry whereas the workman claims that no fair inquiry was held . It is on record that when in the appeal the workman raised the claim tha the was not provided with the copy of the inquiry report the Appellate Authority remanded the case back to the inquiry officer to reconsider the facts and pass fresh orders after providing copy of inquiry report to the workman. The inquiry officer complied with the directions , provided the copy of the inquiry report to the workman . He considered the matter afresh , but found no cogent evidence on record to revise his earlier order and so the services of the workman were finally dispensed with on 19th February, 1997. From the pleadings of the workman it is shown that he had confessed his guilt in writing , thereby , admitting that he had committed misappropriation of the money of the depositors as was alleged against him.

served with the charge sheet dated 4th April , 1996.He admittedthat rhe charges 1 and 2 were correct. He further stated that he was not interested for further proceeding in the inquiry . The statement is shown to have been written by the workman in his own hand which was attested by the inquiry officer besides another person . The inquiry proceedings also contain another letter which is attested on 8th June, 1996. According to this letter the son of the workman was suffering from polio , so the workman was disturbed and was prone to mistakes . By that letter he admitted to have deposited the money misappropriated alongwith interest on 15th March , 1996. Thus we find that the workman admitted, to have committed the embezzlement alleged against him and to have deposited the amount embezzled. The Management has also placed on record the copy of articles of charge , the confessional statement ofthe workman , besides other papers . The workman has only claimedthat the confessional statement made by him was not voluntarily and was procured under threat . He , however , could not say as to why the inquiry officer had given him threats. Neither in his pleadings nor in his affidavit, the workman has submitted facts to show that the inquiry officer had reasons to be partial in the proceedings e.g. he impressed upon the workman to admit his guilt . In the absence of any cogent evidence , it cannot be accepted that the confessional statement may by the workman was not voluntarily . It has been observed that generally after knowing the result of the inquiry proceedings the delinquent official retrate from the statements made by them . Once the delinquent official confesses his guilt, there remains nothing to be gone into inquiry . The law is well settled by Hon ' ble Supreme Court of India that in a domestic inquiry when the delinquent official confesses his guilt , there will be nothing more for the Management to go into and in such a case holding an inquiry further would be mere an empty formality . In this regard reference can be made to the judgement ofHon ' ble Supreme Court in the case of Central Bank of India Vs. Karunamoy Banerjee , reported as ( 1967 ) 2LLJ 739. In the face of the law so laid down by Hon'ble Supreme Court, the authorities referred to and relied upon by the workman reported as 1993 ( 3 ) SCT 137 and 2002 ( 1 ) SCT pales way . Since the workman has failed to prove that his confession was not voluntarily by producing any evidence , therefore, it is taken that this allegation is an afterthought and prompted by the order of the Disciplinary Authority , by which the services of the workman were terminated . The record of the file shows that the workman was duly served with the articles of charges , the copy of the inquiry report was given to him and he was given good chance to defend himself. As stated earlier under his own hand , he declared that he was not interested to participate in the inquiry proceedings further . In view of that statement , the inquiry officer was justified not to have proceeded further in the matter . The relevancy of the documents procured by the workman, such as the affidavits of the complainant in his favour, was the act of the workman , after having been punished in the case . There is no merit in the claim of the workman and to my mind the punishment awarded was also justified as no financial institution would afford to The Management has placed on record the photo copy of inquiry proceedings which contains Written Statement of the workman dated 27th June , 1996 and marked as M- 3. In this letter , the workman admitted to have been

3725 G1/07-35 7714

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

[PART II-SEC. 3 ( ii)]

Ifnot, what relief he is entitled to ? "

retain an official who plays with the trust of the customers , thebackbone of the institution . In my opinion the workman did not deserve any leniency and the punishment awarded waswell justified . The reference is answered against him . Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completion.

KULDIP SINGH , Presiding Officer नई दिल्ली , 24 अगस्त, 2007

On receipt of referece , notice were issued to the parties , who appeared through representative and Counsel , respectively . The workman filed his Claim Statement , against which the Management filed the Written Statement. The workman filed rejoinder and his affidavit . He also placed on record documents marked as W - 1 to W- 3 . The Management filed the affidavit of Sh . S.P. Arya , Superintendent of Post Offices . The workman appeared as a witness and replied to the questions put to him by the Management, in the cross examination . The Management examined Sh. S.P Arya who was also cross examined by the representative of the workman .

का.आ. 2720. औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार सुपरिन्टेन्डेन्ट ऑफ पोस्ट आफिसेस के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. II , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 1109/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल -40012/66/93- आई.आर. ( डी.यू. ) ] सुरेन्द्र सिंह , डेस्क अधिकारी

New Delhi , the 24th August , 2007

S.O. 2720. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the Award (Ref . No. 1109/ 2005) ofthe Central Government Industrial Tribunal -Cum- Labour Court No. II, Chandigarh as shown in the Annexure inthe Industrial Dispute between the employers in relation to the management of Supdt . of Post Offices and their workmen, which was received by the Central Government on 24-8-2007 .

[No. L-40012/66/93 - IR (DU) ]

SURENDRA SINGH, Desk Officer

ANNEXURE

Stated in brief, the claim of the workman is that he was employed as a driver by Respondent No. 1 , on 4th May, 1990 and he served them upto 5th May , 1991. Thereafter the Management used to engage him for short periods i.e. from 2-12/ 13 days in a month . In that between they imported a driver from outside agency that he had served the Management for 240 days in a year preceding the date of his disengagement . Thus the Management was under an obligation to follow the provisions of Sections 25 -F of the I.D. Act , 1947 in short Actbefore the termination of his services . However the Managementdid not comply with the provisions of the said Act and also violated the principles of natural justice . He was neither served with one month's notice nor was paid the wages for the notice period . He was also not given retrenchment compensation . They further violated the provisions of natural justice as they imported a driver from other unit . Thus denied the right to the workman to be adjusted against the post . He has prayed for declaring the termination of his services as bad in law and for payment offull back wages for the period he has remained without service.

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT- IL, CHANDIGARH

Presiding Officer : Shri Kuldip Singh

Case I. D. No. 1109/205

Registered on : 22-09-2005

Date of Decision : 6th June , 2007

Som Dutt Sharma S/ o Sh . Banarsi Dass

:Petitioner

R/o Village Amin , District Kurukshetra

Versus

The Superintendent of Post Office, Kurukshetra Division, Kurukshetra :Respondent

APPEARANCE

For the Workman : Mr. Maharaj Kumar , Advocate

For the Management : Mr. H.C. Arora , Advocate

AWARD

The following reference has been received from Government of India vide their order No. L -40012/66/ 93 - IR (DU) dated 2/5th August, 1994 :-

"Whether the termination of services of Sh. Som Dutt Sahrma , Ex -Driver under Supdt. of Post Offices , Kurukshetra Division , Kurukshetra is justified?

The claim of the Management is that , the workman had served them from 26th June . , 1990 upto 3rd December . , 1990 , with break of two days on 22nd and 23rd August, 1990. Thereafter the workman served in the leave arrangement of one Ashok Kumar driver from 4th January , 1991 to 8th Feb. , 1992. Before that he was also engaged as watchman from 24th to 3 Ist May, 1999. It is further claimed by them that the Management had two vehicles one was at Kurukshetra and the other at Ambala . The vehicle of the Management bearing No.HYX 8218, which was in the use ofSenior Superintendant of Post Offices Ambala was burnt in the agitation against the Reservations in Haryana . As a result the driver of that vehicle was rendered without work. Hewas, therefore , directed to be available in the Divisional Office of the Management at Kurukshetra . Since he was a regular driver of the Management therefore his services were used by both Ambala and Kurukshetra Divisions . The workman however served the Management during the leave vacancy . They denied the right of the workman to serve the Management from 3rd December , 1990 stating [भाग II-खण्ड 3 (ii) ]

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भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

that the Management has a regularly appointed driver at their disposal . They further claimed that the workman was employed against the vacant post of a watchman in the grade of Rs . 750-940 from 24th to 31 st May. , 1990. He was then appointed as jeep driver in the scale of 950-1500 w.e.f. 1st June . , 1990. According to them the workman never completed the service of 240 days in any caledar year and he had worked in the leave vacancy. His services got terminated automatically when the person in whose leave he had been engaged joined the service . In the circumstances he is not entitled to any relief.

The workman in his rejoinder did not add any striking facts and reiterated all that he had said earlier . He claimed that he had served the Management continuously for 246 days , 12 months preceding the date of termination of his services . He further denied that the Management required the services two vehicles . According to him the Management was in possession of only one vehicle , for which the workman was engaged. He has also claimed that since the Ambala Postal Division was a separate Unit and had no links with the Kurukshetra Division, where the workman had a right to continue in . He in the end has prayed for reinstatement in service with full back wages and other relief .

By his statement the workman has proved his affidavit Exhibit W - 1 and the documents placed on record by him exhibit W- 2 and W- 3 . He denied having worked from 25th May, 1990. to 31st May , 1990 on the post of watchman . He also relied upon documents , W- 2- and W-3. He claimed that he had worked as a driver whereas he was given salary at the rate of Rs . 750. He got salary @ 950/- as driver . Sh. S.P. Arya who appeared as a witness of the Management proved his affidavit M - 1 and stated that the Management did not have the post of driver from 24th May, to 31 st July, 1990 and that the salary of the workman was drawn as watchman though he was shown as a driver . The post against which the workman was served was created at Kurukshetra on 26th June , 1990. He further stated that from 1st June to 5th June , 1990 the workman was paid from the contingency and that the post of the watchman was a sanctioned post. He showed his inability to say that the workman had made entries in the LogBook. There is no evidence to show that the workman had served theManagement for 240 days before the date of termination of his services ..

workman has claimed that he had served the Management asdriver from 24th May , 1990 to 5th May , 1991. The Management has denied this fact . They have stated that the workman was appointed on 26th June , 1990, and he served them upto 3rd December, 1990 with breaks on 22nd and 23rd August, 1990. The workman has not been able to controvert this claim of the Management by any evidence . He cross examined the witness of the Management but could not extract anything with them to support his claim . Even otherwise as per Management there was no post ofdriver available with them upto 25th June , 1990. Thus the engagement of workman as a driver from 1 st June , 1990 to 25th June, 1990did not arise. As per the statement of payment of wages to the workman, he was paid the wages as a watchman and not as a driver . The claim ofthe workman also gets denied as according to the Management the workman had served the Management as driver from 4th January , 1991 , to 8th February , 1992 , for 93 days but in the leave arrangement of Sh . Ashok Kumar , Driver . This was another spell of period during which the workman served the Management. The workman himself in para No.2 admitted thathehad served the Management from two to 12 days in amonth till 8th February , 1992 since they had imported a driver from outside . The workman , therefore , himself admitted not to have regularly served the Management from4th January , 1991 to 8th January , 1992. Even when we count the engagement of the workman , though his engagement was in different capacities , during the period from 1st June , 1990 to 5th May , 1991 , the total no . of days he served the Management comes out to be 238 days . This period includes a tenure engagement which he gained and ended with the tenure of leave of the driver against whose postthe workman worked from 4th January , 1991.Therefore, it cannot be said that the workman had served the Management continuously for 240 days 12 months preceding the date of termination of his services . According to him his services were terminated on 5th May , 1991 . However the statement placed on record by the Management show that the workman had further worked from 1st June, 1991 to 8th February, 1992 but with breaks and as per Management on the days the regular driver was on leave . Against this the workman has not produced any evidence . Therefore , failed to show by any evidence much less by cogent evidence that he had served the Management for. 240 days preceding the date of termination ofhis services on 8th Feb. , or say on 9th February , 1992 as is claimed by the workman that he had served the Management upto 8th Feb. , 1992.

According to him, the workman had lost worked for theManagement on 8th February , 1992. The Management has placed on record, the detail of the working days which show the period during which the workman had served the . Management . So as to find out the working days of the workman his services are to be count 12 months preceding the date of termination of his services which he claims to have taken place on 8th February , 1992. Thus counting backward from 8th Feb. , 1992 we find that the workman served the Management for 71 days in twelve months . The

The parties filed Written Arguments and the workman claimed therein, that he had served the Management from 24th May, 1990 to 5th May , 1991. In the same breadth he admitted that he had serve the Management for 2-12 /13 days each month , as the Management had engaged another driver . The workman has failed to rebut the claim of the Management that the 7716

[PART II-SEC . 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

driver, who served the Management on the day the workman was not engaged on none else then a regular employee of the Management who was rendered jobless ontheburningof the vehicle he used to drive in , an agitation. Therefore , the Management utilized his services at Kurukshetra . How could the workman claim to have been engaged to drive vehicle of the Management on a day , when they had already the assistance of a regular driver who was not imported, but was already in the service of the Management . It does not lie in the mouth of the workman to claim that the regular employee of the Management, posted at Ambala , had nothing to do with the working of the another division of the Management at Kurukshetra the workman has also failed to prove copy of the log book he brought on record , to show that he was the workman, who had driven the vehicle of the Management during the days shown therein . After going through the pleading of the parties their arguments I am convinced that the workman has failed to prove that he had served the Management continuously for 240 days preceding the date of his tennination on 8th February , 1992. In fact the engagement ofthe workman was not regular rather he was engaged on different occasions in different capacities may be so as to utilize his service as a driver , but he was paid wages against different post . Even treating that engagement also as a continuous , yet if we count the working days the workman claims to have served the Management it is not proved that he had served the Management for 240 days .

The question of failure of the Management to follow the provisions of the Act thus becomes immaterial . In my opinionthe workman is not entitled to any relief. The award is passed against him . Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completion.

KULDIP SINGH, Presiding Officer नई दिल्ली, 24 अगस्त, 2007

का.आ. 2721.-औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14) की धारा 17 के अनुसरण में , केन्द्रीय सरकार आर्मी स्कूल कै प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ श्रम न्यायालय नं. II , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 1221/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल-14012/3/2005- आई.आर. (डी.यू.) ]

सुरेन्द्र सिंह , डेस्क अधिकारी New Delhi , the 24th August , 2007

S.O. 2721. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 1221 / 2005) of the Central Government Industrial Tribunal- Cum-Labour Court No. II, Chandigarh as shown in the Annexure in the Industrial Dispute between the employers in relation to the management of Army School and their workmen, which was received by the Central Government on 24-8-2007.

[No. L- 14012/3/2005 - IR (DU) ] SURENDRA SINGH, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM - LABOUR COURT- II, CHANDIGARH

Presiding Officer : SHRI KULDIP SINGH Case I. D. No. 1221/2005

Registered on : 29-11-2005

Date of Decision : 9-5-2007

Manoj Kumar S /o Shri Mohinder Pal Singh C/o Bhartiya Mazdoor Sangh , Puri Road,

:Petitioner Arya Samaj , Patiala

Versus

ThePrincipal ,

:Respondent Army School 40, Baradari , Patiala

APPEARANCE

For the Workman

: Mr. M. R. Dhiman AR

: Mr. K. L. Behl , Advocate For the Management

AWARD

The workman is present alongwith representative. Respondent principal of Army School is present alongwith Counsel .

Itis stated by the parties that they may have compromised in the matter and deal has been settled the workman has received Rs . Seventy Four Thousand vide cheque No. 095798 dated 30th April , 2007 drawn on U.T.I. Bank Ltd, Patiala. They have also produced the written undertaking of the workman duly supported by his representative.

The Government of India vide their order No.L - 14012/ 3/2005 - IR(DU) dated 26th October , 2005 desired of this Tribunal to decide whether the action of the management of Army School , Patiala , in terminating , the services of Manoj Kumar , Ex - Safai Karamchari w.e.f. 25-11-04, without complying with the provisions of Industrial Dispute , Act 1947 , was legal and justified . If not , to what relief the concerned workman is entitled to and from which date . In view of the settlement arrived at between the parties no more claim of the workman is left against the Management . He has given in writing that he has forgone his every claim against the Management including the claim of re-instatement/re- employment. Therefore , the workman is entitled to no relief the award is passed against him . Let the copy of this award be sent to appropriate Govt. for necessary action and the file be consigned to records after duecompletion.

KULDIP SINGH , Presiding Officer [ भाग II-खण्ड 3 ( ii ) ]

नई दिल्ली, 24 अगस्त, 2007

का.आ. 2722. 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 निर्दिष्टं औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 152/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था । [सं. एल-12012/476/ 1998 - आईआर( बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 24th August , 2007

S.O. 2722. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 152/ 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- 12012/476/1998 - 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. 152/2004

[Principal Labour Court CGID No.185/99] (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 M. Palanisamy

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भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 185/99 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. 152/2004.

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

"Whether the demand of the workman Shri M. Palanisamy, wait list No. 305 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 :

: IParty/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 .

Forthe Management : M/ s . K. S. Sundar

Advocates

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/476/98 - IR ( B - I) dated 12-03-1999 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 Karur Main branch from 13-06-1978 . 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 Karur Mainbranch . He was called for an interview by a Committee appointedby Respondent/Bank in this regard . But, they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee. From 13-06-1978 the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Siruthozhil branch , another advertisement by the Respondent/ Bank was made regarding casual workers who were reported to be 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 7718

THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC. 3 ( ii) ] required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non -employment. Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days 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 innot absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing 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 questionof regular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law, retrenchment and 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 17-11-1987, 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 forpermanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 305 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. Underthe settlement, employees were categorised as A, B, and. C. Considering their temporary service and subject to other eligibility criteria , under category ( A) the temporary . employees who were engaged for 240 days were to be considered and under category ; ( B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block 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 wasdue to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 305, 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.

[ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

7719

(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 filledup against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment 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 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) 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 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. 305 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified?"

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank undet 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 validand enforceable right for appointment , in the wake of strict instructions and circulars /guidelines issued by the Respondent/Bank to the effect that temporary employees 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 [PART II-SEC . 3 ( ii )] 7720

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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 wasconcerned with the temporary class IV employees who were paid scalewages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in class IV category who were paid wages daily on mutual agreement basis. In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attemptto wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex.M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case oftemporary employees in the matter of absorption . Therefore , it is violative ofArticles 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 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 . 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 onabsorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device 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 issuedfrom time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of MW1 and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . Ml deals with categorization of retrenched temporary employees into 'A, B and C ' , but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come first go ' or ' first . come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex.MI provides an opportunity to persons who were engaged on casual basis and allowed to work in leave /casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex.W8 . Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively . But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non - inclusion except his bald [ भाग II-खण्ड 3 ( ii) ]

7721

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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 caiendar 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 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..

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 MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central) , Hyderabad, it is neither a 18 (3 ) settlement nor 12( 3 ) settlement as claimed by the Respondent/ Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no 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

10. But , as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3 ) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per 3725 G1/ 07-36 [PART II-SEC. 3 ( ii) ] 7722

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

establishment. Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will ofthe parties and is a pointer to there being good will between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud; misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

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 ofthe establishment, even those who belong to the minority union which had objected to the same. To that extent , it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement . " It further held that " there may be exceptional cases , where there may be allegations ofmala fides, fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 К.С.Р. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18( 1) of the 1.D. Act and ( ii) those arrived at in the course of conciliation proceedings under section 18(3) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that "merewording ofreference is not decisive in the matter of tenability ofa reference . Even though the Tribunal cannot go beyond the order of reference , if points of difference are discernible from the material before it , it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording ofreference, subjecting the poor workman to hardship involved in [भाग II- खण्ड 3 ( ii) ]

7723

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the. rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR . COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and 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.

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 itwas a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry ofthe panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that" candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying onall these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 IAB 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 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 [PART II SEC . 3 (ii) ] 7724

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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 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 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 onlydue to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are

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 whoby the very nature of their appointment, do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual innature 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 onthatground alone , it would not be appropriate tojettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed tobe continued permanently . Bydoing 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 madepermanent merely on the strength of such continuance , ifif the original appointment was not made by following a due process of selection as envisaged by relevant rules . " 7725 [ भाग II-खण्ड 3 ( ii) ]

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

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 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 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 policydecisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore . "

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore , I find this point against the Petitioner .

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him. No costs.

21. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January , 2007.)

K. JAYARAMAN , Presiding Officer

Witnesses Examined:-

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the 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. Palanisamy WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :-

Ex. No. Date

Description

W1

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

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

7726

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

W2 20-04-88 Xerox copy of the administrative guidelines issuedby 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 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 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 13-06-78 Хегоx copy of the service certificate issued by Karur Main Branch.

W10 17-08-94 Xerox copy of the service certificate issued by Karur Main Branch .

W11 30-04-97 Xerox copy of the service certificate issued by Siruthozhil Branch .

W12 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinarte care & service conditions .

W13 Nil

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

[PART II-SEC . 3 ( ii) ] W18 26-03-97 Xerox copy of the letter advising selection of part 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 of Madurai Circle .

W21 13-02-95 Xerox copy of the Madurai Module Circular letter about erigaging 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 State 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 .

FortheRespondent/Management : -

Ex. No. Date

Description

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

16-7-88 M2

Xerox copy of the settlement .

M3 27-10-88 Xerox copy of the settlement.

M4 9-01-91 Xerox copy of the settlement .

M5

Хегоx copy of the settlement .

30-07-96

M6 9-06-95 Хегоx copy of the minutes of conciliation proceedings.

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

M8 15-5-98 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa .

M9 10-7-99 Xerox copy of the order of Supreme Court inSLP No. 3082/99 .

M10 Nil

Xerox copy of the wait list ofTrichy 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 , 24 अगस्त , 2007

का.आ. 2723.-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 154/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था । [सं. एल -12012/230/1998 - आईआर(बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 24th August , 2007

S.O. 2723. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 154/ 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 - 12012/230/ 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. 154/2004

[Principal Labour Court CGID No.193/99 ] [ 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 A. Nagarajan

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भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

Labour Court , Chennai and the said Labour Court has taken thedispute on its file as CGID No. 193/99 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. 154/2004 .

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

"Whether the demand of the workman Shri A. Nagarajan , wait list No. 523 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 , Trichirappali

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative .

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

AWARD

1. The Central Government , Ministry of Labour , vide Order No. L- 12012/230/98 - IR (B - I) dated 12-03-1998 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 Thirukkovilur 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 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 BranchManager of the Thirukkovilur 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 initiallyworked as a class IV employee . From the year 1981 the Petitioner has been working as a temporary messenger and some times performing work in other branches also . Whileworking on temporary basis in Thirukkovilur 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 7728

[PART II-SEC . 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

1-4-97 . Hence, the Petitioner raised a dispute with regard to hisnon- employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Government to reconsider the reference and the Petitioner requested the Respondent/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 para522 (4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of 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 Sections 18 ( 1 ) and 18 (3 ) of L.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim ofthe Petitioner isnotbonafide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency, the Respondent/Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff

Federation which resulted in five settlements dated 17-11-1987, 16-07-1988,07-10-1988 , 9-1-1991 and30-7-1996. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 ( 3) 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. 523 in wait list ofZonal Office, Trichy. So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose .When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment. Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to 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 inany calendar year after 17-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-1997 for filling up vacancies which wereto arise upto 31-12-1994 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 523 , 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 [ भाग II- खण्ड 3 ( ii) ]

7729

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

PointNo. 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 of temporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms of the relevant guidelines /circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court 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 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 furtherprayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour .

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rulesof the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank . Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

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

(1) "Whether the demand of the Petitioner in Wait List No. 523 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 ? "

9. Onbehalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18 ( 1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars /guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V- A of the I.D.Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as 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 3725 GI/07-37 7730

[PART II SEC. 3 (ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

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 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 ofthe 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.Ml provides an opportunity to persons who were engaged on casual basis. and allowed to work in leave/casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex .W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not beeninformed 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 settlementdated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively. But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except his bald statement. Further , according to MW1 wait list under Ex.M10 was prepared on 2-5-92 but

there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate 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 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 ofEx. M 10 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 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 . Ml was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them outofthe principal clause 2 (00) of the I.D. Act, 1947 ..

[ भाग II-खण्ड 3 ( ii) ]

7731

भारत का राजपत्र : सितम्बर 22 , 2007/ भांद्र 31 , 1929

case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service 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 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 . Inall these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement onaccount of settlements/lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault oftheirs, they find themselves stranded in life midstream. They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour.

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 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- 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

10. But , as against this , the learned senior counsel for the Respondent/Bank contended that the reference madeby the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and 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 [PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

7732

settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also." He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by thefree will ofthe parties and is a pointer to there being good will between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the Federation in which the Petitioner is also one among them , they have entered. into settlement with the bank and therefore , it is binding on the Petitioner. Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt. is not valid. Further, in this case, the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrett and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that"therefore a settlement arrived at in the course 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 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 ILLJ 308 К.С.Р. LTD. Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18( 1) of the 1.D. Act and ( ii) those arrived at in the course of conciliation proceedings under section 18(3) .A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment. Even in case of the first category, if the

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that "mere wording ofreference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order ofreference, ifpoints of difference are discernible fromthe material before it, it has only on duty and that is to decidethepoints 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 [ भाग II-खण्ड 3 ( ii) ]

7733

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

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 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 Government service in an existing or a future vacancy . " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was ayearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an erid 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 beregularised, 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 7734

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC . 3( ii)]

right to the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp) 754 wherein the Rajasthan High Court has held that "Under Section 25G of the I.D. Act retrenchment procedure following principle of ' last come - first go ' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors ." Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how , if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA VS. UMA DEVI, the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment. He accepts the employment with open eyes . It may be true that he is not in a position to bargain- not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But onthat ground alone , it would not be appropriate tojettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . Bydoing 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 SC 443 NATIONAL FERTILIZERS at the time of his appointment; ( d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover; from the mere continuation of an ad- hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of 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 concemed, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concemed 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 [ भाग II-खण्ड 3 ( ii ) ]

7735

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929.

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

18. Further , the representative for the Petitioner contended that in similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

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 240days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policydecisions of the Govt . in the wake of prevailing market economy , globalisation, privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore ."

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner .

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him . No Costs .

21. Thus , the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January, 2007. )

K. JAYARAMAN , Presiding Officer

Witnesses Examined:-

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service . Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the 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 Petitioner WW1 Sri A. Nagarajan 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 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 to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation , at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the wait list . Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was not abona fide in nature or it has been arrived at on account ofmala fide , misrepresentation, fraud or even corruption or

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation ofEx . Ml .

7736

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy 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 08-08-88 Xerox copy of the service certificate issued by Tirukkovilur Branch .

W10 1990-94 Xerox copy of the service particulars of Petitioner .

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 ofVol . III of Reference book on staff matters 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 advising selection of part time Menial-G. Pandi .

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

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

For the Respondent/Management :-

Ex. No. Date

Description

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

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

M3 27-10-88 Хегоx 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 Хегоx 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 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-खंड 3(ii) ]

नई दिल्ली, 24 अगस्त, 2007

का. आ. 2724.- औद्योगिक विवाद अधिनियम, 1947( 1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार डब्लू.सी.एल. 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 45/2003 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल -22012/75/1988 -डी. IV बी. ] अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 24th August , 2007 S.O. 2724. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 45/ 2003) of the Central Government Industrial Tribunal- cum- Labour Court, Nagpur as shown in the Annexure , in the Industrial Dispute between the employers in relation to the management of WCL and their workman , which was received by the Central Government on 24-8-2007.

[No. L- 22012/75 / 1988-D.IV.B] AJAY KUMAR GAUR, Desk Officer

ANNEXURE BEFORE SHRI A.N. YADAV PRESIDING OFFICER, CGIT-CUM- LABOUR COURT, NAGPUR Case No. CGIT/NGP /45 /2003 Date: 14-08-2007

Petitioner :

The Secretary, Koyla Shramik Sabha (HMS) , Umrer Project -441204,

7737

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

the management also appeared and resisted the Claim by filing Written Statement. During the pendency of the reference the workman whose dispute was raised by the union expired. His legal heirs wife and sons had applied for bringing them on record . After hearing the parties under anorderdt. 01-08-2007 . I have already concluded that the cause of action does not survive and the applicants can not continue the claim since the dispute regarding the date ofbirth was still pending between the management and the workman. Due to the death of the petitioner it can not be continued with the management . The applicants i.e. legal heirs will not be able to continue the same because there is no relationship as a employer and worker exist . Thus due to the death of the petitioner the reference will have to be disposed off as abated . In the result there remains no dispute. Hence this no dispute Award.

Dated: 14-08-07

A.N. YADAV, Presiding Officer नई दिल्ली, 24 अगस्त, 2007

का. आ. 2725.-औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार भारतीय खाद्य निगम के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण नं. 2 , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 454/2005 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल-22012/320/1998- आई. आर. ( सी- II ) ] अजय कुमार गौड़, डेस्क अधिकारी New Delhi , the 24th August, 2007

Party No. 1

Dist.Nagpur.

Versus

Respondent:

The Sub Area Manager , W.C.L. , Umrer Project, 441204, Dist. Nagpur

.PartyNo. 2

AWARD (Dated: 14th August, 2007)

The Central Government , after satisfying the existence ofdisputes between the Secretary, Koyla Shramik Sabha, Umrer Project, Nagpur , Party No. 1 and the Sub AreaManager, W.C.L. , Umrer Project , Nagpur Party No. 2 referred the same for adjudication to this Tribunal vide its Letter No. L- 22012/75/ 88 - D. IV . B) , Dt . 27-06-1989 under clause (d) of Sub- section ( 1 ) and Sub - section ( 2A) of Section 10 of the Industrial Dispute Act, 1947 ( 14 of 1947 ) with the following Schedule :-

(2) "Whether the action of the management of Umrer Colliery of M/ s . W.C.L. in superannuating the workman Shri Kothiram Zade , Dresser w.e.f. 24-08-1987 particularly whenhis date ofbirth recorded in the Municipal Committee Umrer is 20-09-29 is justified? If not, to what relief the workman concerned is entitled ? "

(3) In response to the notice of the Tribunal, the petitioner appeared and filed Statement of Claim . Similarly 3725'GI/07-38

S.O. 2725. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 454/ 2005) of the Central Government Industrial Tribunal- cum- Labour Court No. II , Chandigarh as shown in the Annexure , inthe Industrial Dispute between the employers in relation tothe management of FCI and their workman, which was received by the Central Government on 24-8-2007.

[No. L- 22012/320/ 1998 - IR( C- II) ] AJAY KUMAR GAUR, Desk Officer ANNEXURE

CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT II, CHANDIGARH Shri Kuldip Singh , Presiding Officer Case I.D. No. 454/2005 Registered on : 24-08-2005 Date of decision : 24-05-2007 Om Parkash S/o Shri Jyoti Ram, VPO Mathana District ,

Kurukshetra

Petitioner

Versus

District Manager , Food Corporation of India, Sandeep Chadha Complex , Pipli Road, Kurukshetra

Respondent [PART II-SEC. 3 (ii)] 7738

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

APPEARANCE

Forthe Workman : Mr. A.K. Batra , AR

For theManagement : Mr. N.K. Zakhmi ,

Advocate

AWARD

The workman is continuously absent . Management appears through Counsel .

a contractor, Messrs . Ex - Servicemen Security Services , Kurukshetra with whom the Management had an agreement for providing persons for the watch and ward of the stocks ofthe Management, from time to time . The work ofwatch and ward was not a regular work and was only seasonal and the watch and ward staff was engaged on the need basis . The Management used to make payment of wages to the contractor, as per agreement and they did not issue any appointment letter to the workman nor they had terminated their services . The contractor engaged was an independent organization , duly registered, having valid license . In the engagement of the workman, by the contractor, the Management had no more to play hor they ever enjoyed disciplinary control over them . The workman having failed to join necessary parties , the reference , is therefore, not maintainable . They also claimed that this Tribunal has no jurisdiction to entertain the reference or thatthe workman is entitled to any relief. Even otherwise , the reference is not maintainable since the workman has concealed true facts . In reply to the averments , para by para, the respondents have reiterated the facts stated in the preliminary objections . They have , however, added thatsince the contractor was regularly deducting the EPF from the wages of the workman and deposited the same with the concerned authority under account no . HR- 739, therefore, the workman was an employee of the contractor for all intents and purposes . They have further denied that the Management had mala fide intentions to victimize the workman or that the work for which he was engaged , was permanent in nature . In the end they have claimed that the workman is not entitled to any relief.

Onthe last date of hearing Mr. A.K. Batra, Advocate who was representing the workman stated that he has no instructions to appear in the matter . It is on record that he was allowed to appear for the workman on his claiming, having been engaged by the workman . Mr. Batra failed to furnish authority letter to represent the workman and, as stated earlier on 19th April, 1997, the claimed to have no instructions . It was in these circumstances fresh notice was issued to the workman under R/C , vide postal receipt No.A- 208 dated 4th May, 2006, directing him to appear in the case . The workman is neither present nor the R/C carrying the notice has been received back unserved. The workman lives in the district Kurukshetra and the time, fromthe date of issuance of summon till today is sufficient to reach, for the R/C to each the workman and to the Tribunal , on its return journey , in case the workman was not available on the address given. Therefore , the Tribunal issatisfied that the notice was served upon the workman but he has chosennot to appear in the case . The record of the file also shows that the workman did not appear in the case personally on any date and that speaks of his seriousness to contest his claim . It is in these circumstances the reference is being answered in the absence .

Inthe rejoinder the workman repeated the facts stated in the Claim Statement and added that the agreement between the parties was only for 89 days and the license was issued only for one year. Thereafter , the workman , directly worked under the control of the Management therefore his termination was bad in law .

The Government ofIndia vide their order No. L- 22012/ 320/98 - IR (C- II ) dated 4th June , 2003 has desired to know whether the action of FCI , Kurukshetra in terminating the services of Sh . Krishan Chand and others as named in the list, was legal and justified. Ifnot, to what the said workers were entitled to . Among the workman only Om Parkash filed his Claim Statement by which he stated that he has worked for the Management in their Godown at O.C. Pipli , District Kurukshetra on a salary of Rs . 950/- w.e.f. 28th March, 1994 continuously and on 7th August, 1995 his services were terminated by the Management without any notice, charge sheet or inquiry . He was also not informed on the grounds on the termination of his services . The Management also did not follow the provisions of I.D. Act , 1947 and principles of natural justice . Thus they violated the provisions of Section 25 - F, G and H ofthe Act specifically . They adopted unfair labour practice as the workman was a Trade Unionist . That the workman has remained without any job although this period. He has prayed for quashing the order of termination ofhis services and reinstating him with full back wages , continuity of service and arrears alongwith interest at the rate of 18% p.a.

Insupport oftheir claim the workman filed his affidavit and through his counsel has made an application to place on record photo copy of the Log Book but he did not pursue that application . The Management filed the affidavit of Sh . C.P. Haran , District Manager , but neither the workman nor the witness of the Management appeared in the witness box and to prove their respective affidavits . They have also not produced any legal evidence and the parties did not have chance to test the evidence on the touch stone of cross examination . In this situation the loser is the workman , as , before claiming the reliefas prayed, for he was required to prove that he had continuously served the Management for 240 days 12 months before the date oftermination of his services . He has utterly failed to do that . Thus he has failed to prove that he was a workman, who had served the Management and the Management terminated his services without following the provisions oftheAct or principles of natural justice . In my opinion the workman is not entitled to any relief and the award is passed against him. Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completion .

The Management has opposed the claim of the workman stating that the workman was never engaged by them nor he had served them directly. He was engaged by

KULDIP SINGH, Presiding Officer [ भाग II-खंड 3 ( ii ) ]

नई दिल्ली , 24 अगस्त, 2007

का. आ. 2726.- औद्योगिक विवाद अधिनियम, 1947 (1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार बी.बी.एम.बी. के प्रबंधतंत्रके सम्बद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण नं. 2, चण्डीगढ़ के पंचाट ( संदर्भ संख्या 959/2005 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल -23012/25/1998- आई. आर. ( सी- II ) ] अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 24th August , 2007 S.O. 2726. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 959/ 2005) of the Central Government Industrial Tribunal -cum- Labour Court No. II , Chandigarh as shown in the Annexure , in the Industrial Dispute between the employers in relation to the management of BBMB and their workmen, which was received by the Central Government on 24-8-2007.

[No. L- 23012/25/ 1998 - IR(C-II) ] AJAY KUMAR GAUR, Desk Officer

ANNEXURE

こ

CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT- II, CHANDIGARH Shri Kuldip Singh , Presiding Officer *

Case I.D. No. 959/2005 Registered on : 15-09-2005

Date of decision : 24-05-2007

Kalu Ram S/ o Shri Gopal Ram

Quarter No. 35 /G, Nangal Township ,

Petitioner C/ o Sh . R.K. Singh Parmar, Secy. Pb . INTUC , District Ropar

Versus

ChiefEngineer,

System Operation , Bhakra Beas Management Board , Sector- 19 -B , Madhya Marg , Chandigarh

Respondent

APPEARANCE

For the Workman : Sh . R.K. Singh Parmar,

AR

For the Management : Sh . Ram Singh , AR

7739

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

AWARD

Theparties arepresent through their representatives.

The representative of the workman Sh . R.K. Singh Parmar has stated that he has inspected the record provided by the Management and after examining the same he is satisfied that the workman has not served the Management from 1stApril, 1993 to 31st July, 1993 , therefore , his claim , as made out in this reference , is not supported by the record. He, therefore , desires to withdraw from the contest of this reference , but seeks permission to file fresh claim in case he gets hold of evidence , in his support . The statement of the representative of the workman has been recorded and placed on record. The Management has shown no objection to the prayer made by the representative of the workman. They have only stated that the workman should notbe permitted to file fresh claim unless the same can be filed in accordance with law .

I have considered the prayer made by the representatives of the parties .

TheGovernment of India vide their order No. L -23012/ 25/98 /IR (CM - II ) dated 22nd Feb. , 1999 referred the question for the adjudication of this Tribunal and to say whether the " action of the Chief Engineer (Operation System ) , BBMB, Chandigarh and Resident Engineer , Dehar Power House Division, Bhakra Beas Management Board (Power Wing ) , Sallapar, District Mandi (H.P.) in terminating the services ofSh . Kalu Ram S/o Sh . Gopala Ram w.e.f. 31st July , 1993 is justand legal . If not, to what relief the workman is entitled.

Inresponse to the notice issued by the Tribunal , the partiesappeared through their representative and filed their respective claims . The workman claimed that he had worked for the Management from 2nd June , 1997 to 30th March , 1994 , as Beldar and he was then engaged as a daily wager from October , 1988 to 31st August, 1993. Today his representative has admitted that the workman did not serve theManagement from 1st April , 1993 to 31st July, 1993. By his own statement made through his representative the workman has admitted to have served the Management only upto 31st March , 1993 and not upto 31st August , 1993. Ifwe count the working days of the workman , even as per the claim made by him , he did not serve the Management for 240 days in 12 months preceding the date ofhis disengagement , which according to the statement of his representative took place on 31st July, 1993. Since the workmanhas admitted to have not served the Management for 240 days , 12 months preceding the date of termination ofhis services , therefore , he is not entitled to maintain that he was a workman on the day, his services were terminated, by the Management in violation of the provisions of the I. D. Act especially when the Management has claimed and admitted by the workman , that he had not served the Management for 240 days . Since the workman has failedto prove the basic requirement of his being a workman , therefore, he is not entitled to any relief. The reference made is answered against him . Let a copy of this award be sent to the appropriate Government for necessary action andthe file be consigned to records after due completion.

KULDIP SINGH, Presiding Officer 7740

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC . 3 ( ii) ] नई दिल्ली, 24 अगस्त, 2007

का. आ. 2727.- औद्योगिक विवाद अधिनियम, 1947 (1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार भारतीय खाद्य निगम के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण नं. 2 , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 347/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल -22012/178/एफ/1993- आई. आर. ( सी- II ) ]

अजय कुमार गौड़ , डेस्क अधिकारी

The notice of the reference was given to the parties who appeared through their Counsel . The workman stated his claim by filing Claim Petition dated 27th January , 1994 which was opposed by the Management by their Written Statement filed on 12th May , 1994. In support of his claim the workman filed his affidavit and also placed on record photocopies of the documents . The Management filed affidavit of Shri J.N. Negi , District Manager supporting their claim . They also filed the photocopies of the documents . The then filed the affidavits of other District Managers , G. Jiwan Kumar , Jagdish Singh and H.S. Bedi , but finally examined only H.S. Bedi , as their witness and left all other. They however , examined another witness Gurvinder Singh , AG.II in support of the their claim.

:

New Delhi , the 24th August, 2007

S.O. 2727. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 347/ 2005) of the Central Government Industrial Tribunal - cum- Labour Court No. II , Chandigarh as shown in the Annexure , inthe Industrial Dispute between the employers in relation to the management of FCI and their workmen, which was received by the Central Government on 24-8-2007 .

[No. L- 22012/178/F/ 1993-IR(C- II)] AJAY KUMAR GAUR, Desk Officer

ANNEXURE

CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT II , CHANDIGARH

Shri Kuldip Singh, Presiding Officer

Case I.D. No. 347/2005

Registered on : 16-08-2007

Date of decision : 6-07-2007

Rajinder Pal S/ o Shri Fateh Chand, 1731 , Phase- VII , Mohali

Petitioner

District Ropar

Versus

The Senior Regional Manager , FCI , Sector-34,

The claim ofthe workman is that he was engaged by the Management on 29th Dec. , 1986 as a casual worker on dailywages and was put to various kinds of duties such as watch and ward , messenger and peon . He served the Management till 13th July, 1988 when his services were terminated although the same were satisfactory and there was no complaint against him . The Management also did not call for his explanation on any occasion . The Management further discriminated him by paying him wages on daily basis although similarly placed persons were given regular grade of 750-940 w.e.f. 1st January, 1986 . His claim for regularization annoyed the Management and they terminated his services although he was working against a regular post .Besides , they had 45 posts of watchmen , 16 of messengers and one of typist available with them . The termination of his services was illegal, arbitrary and in violation of the I.D. Act , 1947, hereinafter to be referred as Act. The Management did not pay him the retrenchinent compensation or notice or notice pay before the temination of his services . They engaged fresh workers without providing him opportunity to work. They retained the juniors of the workman and thereby violated the provisions ofSections 25 -G , H and N. The conduct of the Management was also unfair as they engaged the contractor to do the job which he was doing instead getting the same done by him . Thus adopted unfair labour practice . He further stated thathe had raised the demand notice which was withdrawn later on . He also filed a writ petition in the High Court which was withdrawn the writ petition with permission and thereafter he had raised fresh demand notice .

Chandigarh

.Respondent

APPEARANCE

For the Workman : Sh. H.S. Hundal ,

Advocate

Sh . N.K. Zakhmi ,

For the Management

Advocate

AWARD

The Government of India vide their Order No. L- 22012/ 178 /F/ 93 - IR ( C.II ) dated 2nd Sept. , 1993 , the Ministry of Labour referred the following dispute for the adjudication of this Tribunal :-

"Whether thetermination of services of Shri Rajinder PalS/o Shri Fateh Chand is justified? If not, to what relief is he entitled to and from what date ? "

The claim of the Management is that they had engaged the workman on casual basis so as to work as a messenger but denied that he was engaged to do all sort of jobs of Class - IV employees . Admitting that the services of the workman were retrenched on 13th July, 1988 they claimed that the same was done by following the provisions ofSection 25F of the Act as the corporation did not require the services of the workman any more . Claiming that since the workman was engaged as a Casual worker , therefore, there was no question of calling for his explanation nor he could be given pay scale of a regular employee . The Management Corporation has a proper recruitment procedure under rules for the purpose of filling the vacancies and no person could be regularized in service just on his making the application . The availability ofjobs with the Management depended upon the availability of [भाग II- खंड 3 ( ii ) ]

7741

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

work. So as to overcome the losses , the FCI suffered , no postwas filled up and so nobody could be recruited. It is further submitted by the Management that at the time of disengaging the workman , he was offered retrenchment compensation and wages for the notice period in the amount ofRs. 1350, in the shape of Cheque No. 061837 dated 13th July, 1988, but the workman refused to accept the same . The Management then sent that cheque to the workman under R/ C and the same was returned with the endorsement of the postal authorities " left without address returned to sender . " The Management thus did all that all was possible so as to pay the compensation to the workman but failed. They denied that the Management indulged in unfair labour práctice and had engaged people through a contractor as per the Contract Labour (Revolution and Evolution) Act, 1970. According to them the nature ofjob performedby the workman was altogether different than the one offered to the newly engaged workmen . Thus the Management did not violate the provisions of the law . Even otherwise , as is held by Hon'ble Supreme Court in the case reported as AIR, 1985 Supreme Court , 448 , every depot , godown and office of the corporation was different establishment, therefore , the workman could not compare himself with the workers working in that Regional Office of the Management in Punjab . They have alleged that the workman has harassed the Management by raising the demand then withdrawing it, then going to the High Court , then again withdrawing the petition and he has done that with mala fide intentions therefore , also the reference is bad .

the shape of cheque No. 061837 dated 13th July , 1988 but the workman had refused to accept the same . The Management then tendered that amount to the workman by a Regd. Letter. However the Regd. Letter carrying the cheque could not be served upon the workman and itwas reported by the Postal Authorities that " the addressee left without the address . " The letter was sent to the workman onthe address House No. 2165 , Sector- 35C, Chandigarh . They have also placed on record photo copy of the sanctioned order exhibit A- 4 and exhibit A- 5 which reads that retrenchment compensation and one months notice pay in lieu of notice was sanctioned in favour of 9 casual workers including Rajinder Pal and the amount was paidto him vide cheque No. 061837 dated 13th July , 1988 , in the amount of Rs . 1350. The workman has failed to rebut this claim ofthe Management by any evidence except his own statement that the amount of compensation was not paid to him by the Management . The Management has also supported their claim with the order passed in a similar caseby CGIT - cum- Labour Court , Chandigarh , in I.D. No. 106 of 1989. They have claimed that like in the case ofBimla Devi , the workman in that case , they had offered the payment of compensation to the workman but he refused. The Management has however , not produced the witness who had offered the cheque and the notice pay, to the workman nor they have placed on record the letter, with which the cheque was enclosed to show in whose presence it was offered and refused . But the evidence so produced show that the Management had prepared the cheque in favour of the workman which represented the notice pay and the retrenchment compensation. The report of postal authorities shows that the R/C was sent to the workman but was returned. The workman has not shown that the amount so offered was less than the amount due to him as notice pay and the retrenchment compensation . He has only claimed the violation of Section 25 -N of the Act without producing evidence in terms of section 25K of the Actproving that during the period the workman worked for the Management on everage had engaged not less than one hundred workers in preceding 12 months . The admission of witness of the Management that the Management had engaged one hundred workmen is not sufficient. The engagement of 100 workmen should be on everage in 12 preceding months . No claim of less payment wages has been made out .

The question which has fallen for the consideration of this Tribunal is whether the termination of services of Shri Rajender Pal , by the Management, was justified or not . From the pleadings ofthe parties it is shown that they are at variance about facts very little . There is no dispute between them that the workman had served the Management and his services were terminated on 13th July, 1988. The Management also did not dispute that the workman by that day had served the Management for more than 1 year. As per their claim , they had given wages for one month in lieu of the notice period and the retrenchment compensation to the workman on the day his services were terminated. It shows that the workman had served the Management for more than 240 days on the day his services were terminated. The facts which are disputed by the Management are that the workınan was not entitled to a regular grade of Rs . 750-940 w.e.f. 7th January , 1996. Their claim is that the workman was a casual worker engaged on need basis and was not a regular employee nor he was engaged against a regular post , therefore , he could not claim a regulargrade . The question ofgiving regular grade to the workman is beyond the scope of the reference , therefore , it cannot be considered.

Thedispute which requires consideration is whether the Management , on the day of terminating the services of the workman , the Management had not given him retrenchment compensation as well as the wages for the notice period . The workman has claimed that the same were not paid to him. The claim ofthe Management is that they had offered the retrenchment compensation and the wages for the notice period , in the amount ofRs . 1350 , in

It is generally believed that once the retrenchment compensation is accepted , the workman loses the job permanently and for their reason generally the compensation offered is refused. The official acts done in a normal course are presumed to be correct unless proved otherwise . If a cheque for an amount representing the notice wages and retrenchment compensation was prepared it is presumed to have been given to the workman and if it did not reach to him , it was because he had left without proper address and was not available on the address which was available with the Management . The Management did all thatwhich was possible and in their control. It cannot be said that they did not give the compensation to the workman on the day his services were terminated purposely. So far the question, whether the Management had violated 7742

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

theprovisions of the law in terminating the services ofthe workman is concerned, I am of the opinion that all that whatwas possible and expected of them under the I.D. Act was done by the Management . They offered the payment of wages for the notice period and the retrenchment compensation to the workman , before the termination of his services in July, 1988. Thus it cannot be said that the termination of the workman was bad in law because of violation of provision of Section 25F of the Act .

The fact, however, remains that the Management did not act appropriately after dispensing with the services of the workman . If the cheque representing the amount of compensation, offered to him , was refused by the workman, they should have made endorsement thereof on the letter inpresence of the witnesses . They further failed in their dutyto offer the amount of compensation to the workman on the day they appeared in response to the demand notice , before the conciliation officer to prove their bona fide , of having offered the amount of compensation to the workman . Theydid not do that even when notice from this Tribunal , asking them to answer the claim of the workman, was given to them . I have accepted their plea that they had offered the amount of compensation to the workman, on the day the services of the workman were disengaged , but I feel they owed dutytowards the workman to have offered the same before the conciliation officer , before the Tribunal or should have again sent the cheque to him , after they had known about his changed residential address , as was given in the Claim Statement . Since the workman has failed to prove that his termination was not bad in law, he is not entitled to the relief of quashment , of his order of disengagement but he is definitely entitled to the amount ofcompensation he was due on the day his services were dispensed with.

In view of the discussion made above I decide the reference against the workman holding that the Management was justified in disengaging him from service astheydid not require the same any more . He was entitled , on they day his services were disengaged to the amount of compensation . If he refused to accept the same he was still entitled to that at least after the day they appeared before the conciliation officer and this Tribunal . Therefore, I hold that the workman is entitled to the amount of compensation plusinterest thereon at the rate of 9 % p.a. from the date the Management appeared in this Tribunal in response to the notice i.e. 27th January, 1994 termination. The award is passed in these temis . Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completion.

KULDIP SINGH, Presiding Officer नई दिल्ली, 24अगस्त, 2007

का. आ. 2728.- औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार भारतीय खाद्य निगम के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण नं. 2 , चण्डीगढ़ के पंचाट ( संदर्भ संख्या 456/2005 ) को

[PART II-SEC . 3( ii)] प्रकाशित करती है, जो केन्द्रीय सरकार को 24-8-2007 को प्राप्त हुआ था ।

[सं. एल-22012/320/1998-आई. आर. (सी- II ) ]

अजय कुमार गौड़ , डेस्क अधिकारी New Delhi , the 24th August, 2007

S.O. 2728. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 456/ 2005) of the Central Government Industrial Tribunal-cum- Labour Court No. II , Chandigarh as shown in the Annexure , inthe Industrial Dispute between the employers in relation tothe management of FCI and their workmen, which was received by the Central Government on 24-8-2007 .

[No. L-22012/ 320/ 1998 - IR (C- II) ] AJAY KUMAR GAUR, Desk Officer ANNEXURE

CENTRAL GOVT. INDUSTRIAL TRIBUNAL-CUM- LABOUR COURT IL, CHANDIGARH Shri Kuldip Singh , Presiding Officer

Case I.D. No. 456/2005 Registered on : 24-08-2005-

Date of Decision : 24-05-2007

Ranbir Singh S/ o Shri Mansa Ram , VPO Thanasar,

Petitioner District Yamunagar

Versus

DistrictManager , FoodCorporation of India , 494, Shashan Marg ,

Karnal

Respondent APPEARANCE

For the Workman : Mr. A.K. Batra , AR Forthe Management : Mr. N.K. Zakhmi ,

Advocate

AWARD

The workman is continuously absent. Management appears through Counsel .

Onthe last date of hearing , Mr. A. K. Batra , Advocate who represents the workman stated that he has no instructions to appear in the matter. It is on record that he was allowed to appear, for the workman, on his claiming, having been engaged by the workman . Mr. Batra has failed to furnish authority letter to represent the workman and, as stated earlier , on 19th April , 1997 he claimed to have no instructions . It was in these circumstances fresh notice was issued to the workman under R/ C , vide postal receipt no.A - 209 dated 4th May , 2006, directing him to appear in the case. the workman is not present . The notice sent to hinı has been received back unserved with the [भाग II-खंड 3(ii) ]

7743

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

intentions to victimize the workman or that the work for which he was engaged was permanent in nature . In the end they have prayed that the workman is not entitled to any relief.

endorsement of the Postal Authorities " (UNCLAIMED ) . " From the report of the postal authorities the Tribunal is satisfied that the workman is not interested to prosecute his case . The record of the file also shows that the workman did not appear in the case personally on any date ; and that also shows his seriousness to contest his claim . It is in these circumstances the reference is being answered in his absence .

In the rejoinder the workman has repeated the facts stated in the Claim Statement and added that agreement with contractor was only for 89 days and the licence was issued in his favour only for one year . Thereafter the workman directly worked under the control of the Management, therefore , his termination was bad in law .

=

TheGovernment of India vide their order no . L-22012/ 320/98 - IR(C - II ) dated 4th June , 2003 desired to know whether the action of the Management of Food Corporation of India , Kurukshetra in terminating the services of Sh . Krishan Chand, Ranbir Singh and others was legal and justified ? If not, to what relief they are entitled to . Among the workman only Ranbir Singh filed his Claim Statement, by which he stated that he had worked for the Management in their Godown at Jagadari , District Yamunanagar , on salary , Rs . 930, w.e.f. Ist May, 1995 , continuously and on 20th September, 1996 his services were terminated by the Management without any notice , charge sheet or inquiry. He was also not informed of the grounds of termination of his services . The Management also did not follow the provisions of I.D. Act, 1947 , hereinafter to be referred as "Act" and principles of natural justice . Thus they violated the provisions of Sections 25- F, G and H of the Act specifically . They adopted unfair labour practice as the workman was Trade Unionist . That the workman has remained without any job although this period . He has prayed for quashing the order of termination of services and reinstating him with full back wages , continuity of service and arrears alongwith interest at the rate of 18% p.a,

In support of their claim the workman filed his affidavit and through his counsel made an application to place on record photocopy of the Log Book , but he did not pursue that application . The Management filed the affidavit of ShGirish Kumar , Area Manager, but neither the workman nor the witness of the Management appeared to prove their respective affidavits . They have also not produced. any legal evidence as the parties did not had chance to test thatevidence on the touch stone of the cross - examination . In this situation the loser is the workman , as , before claiming relief, as prayed for , he was required to prove that he had continuously served the Management for 240 days continuously, 12 months preceding the date of termination ofhis services . He has utterly failed to prove that. Thus he hasfailedto prove that he was a workman who served the Management and the Management terminated his services without following the provisions of the Act or principles ofnatural justice . In my opinion the workman is not entitled to any relief and the award is passed against him . Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completion.

KULDIP SINGH, Presiding Officer

नई दिल्ली , 27 अगस्त, 2007.

का. आ. 2729.- औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार इंडियन ओवरसीज बैंक के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण/ श्रम न्यायालय नं. - 2 , चंडीगढ़ के पंचाट ( संदर्भ संख्या 885/2005 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-8-2007 कोप्राप्त हुआ था ।

[सं. एल -12012/6/2001- आई आर ( बी- II ) ] राजिन्द्र कुमार , डेस्क अधिकारी

New Delhi , the 27th August, 2007

S.O. 2729. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 885/ 2005) of the Central Government Industrial Tribunal - cum- Labour Court No. 2, Chandigarh as shown in the Annexure , inthe Industrial Dispute between the management of Indian Overseas Bank and their workmen, which was received by the Central Government on 23-8-2007.

The Management has opposed the claim of the workman stating that the workman was never engaged by them nor he had ever served them directly . He was engaged by a contractor, Messrs . Ex- Servicemen Security Services , Kurukshetra , with whom the Management had an agreement for providing persons for the watch and ward of the stocks of theManagement , from time to time . The work ofwatch and ward was not a regular work and was only seasonal and the staff for watch and ward of stock was engaged on need basis . The Management used to make payment of wages to the contractor as per agreement and they did not issue any appointment order to the workman . Nor they had terminated his services . The contractor engaged was an independent organisation , duly registered and having a valid licence. In the engagementgement of the workman , by the contractor, the Management has role to play . The workman having failed to join necessary party, his reference is therefore not maintainable . They have also claimed that this Tribunal has no jurisdiction to entertain the reference nor the workman is entitled to any relief. Even otherwise the reference is not maintainable since the workman has concealed true facts . In replyto the averments , para by para , the respondents have reiterated the facts stated in the preliminary objections .They have , however, added that since the contractor was regularly deducting the EPF from the wages of the workman and deposited the same with the concerned authority, under A/C No. HR- 7239 , therefore , the workman was an employee of the contractor . They have further denied that the Management had mala fide

[No. L- 12012/6/2001 - IR (B- II)] RAJINDER KUMAR , Desk Officer 7744

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM- LABOUR COURT - II, CHANDIGARH

Shri Kuldip Singh, Presiding Officer

CASE I.D. No. 885/2005

Registered on : 12-9-2005

Date of Decision : 7-6-2007

Petitioner Sushil Kumar S / o Shri Sube Singh , House No. 1 , Vikram Colony, Rajpura Town , Patiala

Versus

Indian Overseas Bank , The Assistant General Manager , 10B , P.O. Box No. 3765 , 763 Anna Salai , Chennai

[PART II-SEC . 3 ( ii ) ]

Respondent

APPEARANCE

Forthe Workman : Mr. Raj Kaushik, Advocate For the Management : Mr.Ramesh Chopra , AR

AWARD

The following reference was received from Government of India , Ministry of Labour under their No. L- 12012/6/2001 - IR (B - II) dated 27th April , 2001 :-

"Whether the action of the Assistant General Manager , Indian Overseas Bank . in awarding the punishment of discharge from service to Sh . Sushil Kumar w.e.f. 1st July, 1999 is just and legal ? If not , whatrelief the concerned workman is entitled to and from which date ? "

The notice of the reference was taken by the parties who appeared through Counsel . The workman filed his Claim Statement and the Management their Written Statement . They also placed on record photocopy of the inquiry proceedings. Since the discharge of the workman was done after a domestic inquiry and the workaman in his Claim Statement alleged that the inquiry held against him was not fair and proper , therefore , it was directed that arguments on fairness of inquiry be addressed first . The parties have submitted the Written Arguments which I have considered and have also gone through the file .

Stated in brief, the claim of the workman is that he was employed as a messenger by the Management Bank in the year 1994 and while working in the Bank he introduced one Asha Rani R/ o Anand Colony, Rajpura , so as to open her account in the Bank at Rajpura . The said Asha Rani made transactions through her account and at times he received money from the Bank on her behalf that on 30th Dec. , 1997 said Asha Rani submitted a withdrawal form to the Bank and the workman posted the withdrawal while leaving blank line for posting of the credit voucher . The passing officer without checking the ledger passed the withdrawal . However , in the evening it was found that the credit entry has not been done in the recods , therefore , he approached the depositor to tender an amount of Rs . 31,500 , which the workman deposited in the account. All those transactions were done with the full knowledge of the Bank Manager . That the Management framed the petitioner although there was no complaint filed by Asha Rani and he was placed under suspension w.e.f. 24th March, 1998 . The Disciplinary Authority without appreciating the explanation given by the workman initiated the inquiry proceedings ; that the inquiry officer did not conduct the inquiry fairly. On the first date of the inquiry he provided with a list of documents . He was also allowed to inspect the documents alongwith his defence representative . On the next date fixed for which the inquiry was fixed two witnesses of Management Ashok Trivedi and Sh . M. L.. Alexanderwere examined . The workman then was asked to produce his evidence , without providing him the opportunity to get prepard for the same . The workman , in the circumstances , examined Smt . Asha Rani , the depositor on that date. The inquiry officer, therefore , did not give sufficient time to the workman to prepare his defence . That the Management got a letter prepared from the Rattan Chand when the daughter of the workman was sick. The workman was called to the police station where he was made to sign the letter under threat that so long he did not sign that letter he will not be allowed to leave . The said letter was used against the workman during the inquiry . Thus the inquiry was conducted in violation of principles of natural justice . The discharge of the workman based upon such an inquiry is bad in law, so is required to be quashed . His prayer is that he may be reinstated in service with all consequential benefits .

The claim of the Management is that the workman was punished in terms of para 17.6 sub - para B ofbipartite settlement since he had withdrawn Rs . 31,500 fraudulently from Savings Bank Account No. 10158 opened In the name ofAsha Rani . On 30th Dec. , 1997 when Asha Rani came to withdraw an amount of Rs . 39,000 from her account , the workman , so as to cover up his fraudulent act volunteered to fill up the withdrawal form and got the same passed from the scroll officer , obtained the payment from the cashier on herbehalf, but later on removed the withdrawal slip from the payment vouchers of the day he thus caused damage to the property of the Bank and thereby committed misconduct as defined by para 17.5 (B) of the bipartite settlement of 1966. The workınan had forged the thumb impressions of the account holder and withdrew an aniount ofRs . 31,500. Denying the claim of the workman that he had not committed any inisconduct, it is stated by the Management that the workman in his own words admitted tohave left blank a line in the ledger . Thus he had mala fide intentions . The Management further denied that the explanation of the workman was not considered by the Disciplinary Authority rather the Disciplinary Authority had found sufficient material to hold an inquiry against the workman.

With regard to the holding ofthe inquiry it is claimed by the Management that the statement of the witnesses of the parties were taken down on 9th Dec. , 1998. Denying the claim of the workman that he was not given sufficient time to prepare his defence it is stated by them that he never asked for time to produce the witnesses rather his [ भाग II-खंड 3 (ii ) ]

=

defence representative cross - examined the witness of the Management and also produced Smt. Asha Rani , as witness . Thereafter , the workman closed their evidence at his own will . According to them the workman prevailed upon Smt. Asha Rani , who had earlier made complaint against him, therefore, she appeared as his witness . Claiming that there was no bar to record the evidence of the defence on the day of theManagement closed his evidence . It is stated by the Management that they had followed the principles of natural justice while holding the inquiry . They have provided the list of witnesses and documents besides the investigation report to the workman . The inquiry was adjourned on the request of the workman on 27th August , 1998 and on 8th Sep. , 1998. On 9th Dec. , the workman was given full opportunity to produce his witnesses . The workman was also given opportunity to submit his brief. Afterthe conclusion of the inquiry, the workman was given another notice of the hearing fixed next . The Appellate Authority also provided personal hearing to the workman andthereafter passed the order. The Management therefore provided fair and reasonable opportunity to the workman and did not violate the principles of the natural justice . Denying that the workman was asked to sign the letter under pressure it is stated by the Management that there was no compulsion on the workman to sign the letter rather he had voluntarily confessed his misconduct . Since the workman had committed fraudulent dealing and also removed the withdrawal form , he suppressed the fraud committed by him . Relying upon the judgement of the Hon'ble Supreme court , in the case reportell as 1996 11 LLN it is submitted by the Management that , a fair and proper inquiry was held and that the workman was rightly discharged from service although the misconduct, alleged against him was serious . In the end the Management has prayed that in case it is found that an inquiry conducted was not fair and proper , the Management be allowed to produce evidence to support the action taken by them against him. In nutshell, the workman was discharged from service for having committed fraudulent act by which he caused financial loss to the Management .

I have perused the inquiry proceedings , photo copy ofwhich is placed on record. In order to find out whether a fair and proper inquiry was held , it has to be kept in mind thatin a domestic inquiry the Tribunal does not sit in appeal over the order of the Disciplinary Authority and the Appellate Authority . A Tribunal can only see is whether the provisions of the law and principles of natural justice were followed while holding the inquiry or not. The rules of natural justice require that the workman proceeded against, is informed of the charges levelled against him . The witnesses of the Management are examined in his presence andhe is given full opportunity to cross examined them. Then he is allowed fair opportunity to examine his witnesses including himself and the inquiry officer records hisreasoning after examining the records. It is also required thatthe workman is given full assistance to examine any other record which he likes to examine and produce any evidence, to support his explanation . The workman, in this 3725 Gl/07-39

7745

भारत काराजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

case has given answer to all the requirement himself . He admitted that he had introduced Smt. Asha Rani who helped her to open an account in the Management Bank . He admitted to have received the chargesheet and cross- examined the witnesses of the Management alongwith his representative . The perusal of the inquiry proceeding also show that all along the defence representative remained present in the proceedings besides the workman . He recieved charge sheet , cxross - examined the witness of the Management through the defence representative .

The examination of the inquiry proceedings show that the Management produced Sh . A. K. Dwivedi and Sh . M. Alexander as their witnesses who were cross- examinedby the workman through his representatives. The inquiry officer provided full opportunity to the workman to cross - examined those witnesses . At the close of the statements of the witnesses the statements were explained to the workman , who signed form the statements acknowledging to have understood the meaning of the statement made by the witnesses . There is on record a- notice dated 19th Dec. , 1998 of the inquiry officer to the defence representative asking him to file his defencebrief. There is nothing on record to show that the workman had asked for more time to prepare for defence or that he was handicapped to put up his defence . There is absolutely no evidence to support the claim of the workman that he was not ready to produce his defence . The fact is that the workman on no occasion claimed that he may be provided further opportunity or time to produce evidence in his defence. Thus it can be said that the inquiry officer followed the provisions of the law and principles of natural justice while holding the domestic inquiry against him . The charges against the workman were very serious as he had withdrawn more than Rs . 30,000 from the account of a lady . The fact that the workman himself deposited the money under his own signatures with the Bank , further goes to show that it was he who had misappropriated the funds of the Management . In the circumstances I feel the punishment of discharge award to him is lenient as the financial institution cannot afford to retain fraudulent people like theworkman.

Considering all the facts and circumstances of the case I am of the opinion that the action of the Assistant General Manager was well justified in discharging the workman from service as he was evolved in a fraud case . Therefore , he is not entitled to any relief. The award is passed against him . Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completion .

KULDIP SINGH, Presiding Officer नई दिल्ली , 27 अगस्त, 2007

का. आ. 2730.- औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14) की धारा 17 के अनुसरण में, केन्द्रीय सरकार सिंडिकेट बैंक के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण/ 7746

[PART Li -SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

श्रम न्यायालय नं. - 2, चंडीगढ़ के पंचाट ( संदर्भ संख्या 897/2005 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/367/96- आई आर ( बी- II ) ] राजिन्द्र कुमार , डेस्क अधिकारी

replication and his affidavit supported by documents CW-1to CW-19 . The Management filed affidavit of Shri T. R. Rajagopal their Deputy Chief Manager , supported by photocopies of the documents M- 1 to M - 13 besides two envelopes , marked as A and B. The workman came in the witness box whereas the Management produced Shri T. R. Rajagopal as their witness .

New Delhi , the 27th August, 2007

S.O. 2730. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Reference No. 897/2005 ) of the Central Government Industrial Tribunal- cum-Labour Court No. 2, Chandigarh as shown in the Annexure, in the Industrial Dispute between the employers in relation to the management of Syndicate Bank and their workmen which was received by the Central Government on23-8-2007 .

[No. L- 12012/367/96- IR (B - II) ] RAJINDER KUMAR , Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM - LABOUR COURT - II , CHANDIGARH

Shri Kuldip Singh , Presiding Officer

CASE I.D. ΝΟ . 897/2005

Registered on : 13-9-2005

Date of Decision : 14-5-2007

Pawan Kumar S/ o Shri Faquir Chand Goyal R/ o . House No. 380 , Sector- 14 , Urban Estate , Karnal

Petitioner

Versus

Assistant General Manager , Syndicate Bank, Sarojini House , 6 , Bhagwan Dass Road , New Delhi

Respondent

APPEARANCE .

For the Workman : Mr. B. B. Sharma , Advocate

For the Management : Mr. A. K. Jaiswal , Advocate

AWARD

The following reference was received from Government of India , Ministry of Labour vide their Order No. L- 12012/367/96- IR (B - II ) dated 29th August, 1997 :-

"Whether the action of the Management of Syndicate Bank in treating Sh . Pawan Kumar Goel, Clerk at Karnal Branch as voluntary cessation of his employment vide their order dated 26th Nov. , 1993 is legal and justified ? If not, to what relief the said workman is entitled ? "

The claim of the workman is that he was appointed as a Clerk and he joined his duties on 22nd Sept. , 1978 , in the Babul Branch of Karnal District ; that he fell ill and the doctors advised him rest. He applied for grant of leave dulysupportedby medical certificate which was sanctioned from 25th November , 1989 to 23rd May, 1993. As he could not recover from illness , so he applied for extension of leave from 23rd April , 1992 to 23rd May, 1993. The Management directed the workman to submit the detail of his treatment and support the same with documents such as X- ray report, doctor's prescriptions which the workman supplied , but thereafter he heard nothing from the Management . He presumed that the leave applied for has beensanctioned in his favour. He applied for extension of leave upto 10th August , 1994 from his family house at Kaithal , as he had shifted there . On 1st August , 1994 he received a Regd . Letter, by which he was directed to report atthe Kamal Branch of the Management for the settlement of his employees PF . It was there only he came to know that his services have been terininated w.e.f. 26th Nov. , 1993. Though that order was not served upon him but on his request , a copy of order was given by the Branclı Manager. It is the claim of the workman that the action of theManagement was illegal , unconstitutional and against the principles of natural justice as the Management had dispensed with his services without following the provisions ofSection - 25 -F of the I.D Act, 1947 , for brevity Act . He was not given any retrenchment compensation nor a notice or pay in lieu ofnotice period. The Management further made the mistake and did not provide reasonable opportunity to the workman to explain his position before the major punishment of dismissal from the service was awarded . They did not serve any charge upon him nor held any inquiry, therefore , the order passed against him was bad in law . They could also not invoke the para XVII of 5th Bipartite Settlement dated 10th April , 1989 as the workman had applied for leave on medical grounds and the competent authority has sanctioned the leave in his favour. Since he could not recover from the illness so he applied for extension of leave. There was , therefore , no reason to presume that the workman had absented from duties . The punishment awarded therefore , was a clear violation of provisions of the Act and principles of natural justice . Moreover the Management did not reject his application as he was not conveyed the refusal to. Even otherwise the period ofhis absence could be treated as extraordinary leave . In the end he prayed that the order of termination of his services be set aside and the workman be reinstated in service right from 26th November , 1993. He may also be given benefit of continuity in service and back wages .

The notice of the reference was given to the parties , in response to which the workman filed his Claim Statement. He supported his claim with documents P- 1 and P- 2 . The Management filed reply . Thereafter the workman filed the

The claim of the workman has been opposed by the Management. They have taken preliminary objections to the maintainability of the reference and have also replied 7747 भारत का राजपत्र । सितम्बर 22 , 2007/ भाद्र 31 , 1929

[भाग II- खंड 3 ( ii ) ]

19th March, 1993 he joined his services on 20th April , 1993 and again applied for leave on 23rd April , 1993 and upto 23rdMay, 1993 although the medical certificates certified that the workman is fit to resume his duties . The Management could not bear misconduct and absence of duty as it threatened their working . They lost faith in his integrity and honesty . The Management has prayed for that the reference made be rejected as the workman is not entitledtoanyrelief.

The workman filed the replication and repeated facts stated in the Claim Statement . He admitted to have received letter dated 6th and 18th January , 1982, 3rd April , 1984 and 20th October , 1990 and claimed that those letters were issuedjust to harass the workman . Admitting that he has remained absent from duty from 15th Nov. , 1992 to 19th March, 1992 he stated that he was ill , therefore , he couldnot joined his duties and requested for extension of leave onmedical grounds . He denied to have received letter dated 14th October, 1993 and 16th October , 1993 and stated that the decision of the Management was unilateral as the workman had never requested for voluntary retirement . He reiterated that the services of the workman were terminated as a matter of punishment and he was not given notice before the awarding ofthe punishment even otherwise the punishment was arbitrary and against the principles of naturaljustice as no opportunity was given to him to defend him nor any inquiry was held. Therefore , the punishment awarded was bad in law.

the averments, made in the claim Petition , para by para, It is stated by them that the reference is bad since neither the petitioner is a workman nor there existed any dispute between the parties. In order to maintain the reference the petitioner was to fall in the definition of the " workman " as defined in Section 2- ( S ) of the Act and was also to prove there existed dispute between the petitioner and the Management . The workman having been dismissed from service on the day the reference was made he did not fall in the definition of the workınan , and so, he could not maintain the reference . For this reason also the reference should be dismissed . On merits it is their claim that contents of para no. 2 are correct, that the workman was served with the letters as detailed in para no . 3 of the Written Statement, but he did not report for duty even thereafter . Therefore, the Management treated that the workman having voluntarily retired from service w.e.f. 14thNov. , 1993. They admitted that the two letters were received back undelivered , although he same were sent on the last known address of the workman . It is further submitted by them that the workman failed to substantiate his illness , therefore , he was treated absensted from duty. The workınan submitted certain medical certificate , but the Management did not treat them sufficient to support the claim for grant ofleave . He alleged that the workman did not inform them about the change in his address , therefore , many of the letters were returned back undelivered . They further admitted that the letter declaring him having retired voluntarily , was received back unserved although it was sent to him on the last known address and the presumption was that the letter has been served upon the workman .

Theworkman appeared as a witness and proved his affidavit W- 1 besides the documents W- 2 to W- 20 he claimed that he had not received the letters exhibit M - 1 to M-10, but admitted to have received documents M - 11 to M-13 .Management examined Shri T. R. Rajagopal , Manager who proved his affidavit M- 14 and stated that leave had been sanctioned in favour of the workman vide letter exhibit W-2. He, however, claimed that the workman had abandoned his service, therefore , the Management discharged him from service under the Bipartite Settlement . He admitted thatunder the Bipartite Agreement a notice was required to be given to the workman and stated that a notice was given to the workman and it was duly served upon him and inthe same breath he stated that the notice although was sent on the last known address of the workman, but the cover containing the notice was received back with the report "undelivered . " He further admitted that no other mode was followed to see that the notice is served upon the workman such as publication of notice in the newspaper asthe bipartite agreement did not prescribe any such mode tobe adopted . He , however , denied that the workman was discharged for his mis conduct. I have gone through the file and have also considered the arguments submitted by the Counsel for the parties .

There is no dispute about the fact that he was engaged by the Management as Clerk and he served them from 22nd Sep. , 1978 till 24th November , 1989. According to the workman he fell ill and suffered froın survical , spondalitus , therefore , he could not move freely and as per the advice of the doctors remained on leave from 25th Nov. , 1989 to 23rd May, 1993. He further applied for extension of TheManagement has further claimed that claim made by the workman is incorrect . Infact the services of the workman got terminated automatically as in para no . 9 failed to fulfill the conditions of his services . They denied that the services of the workman were terminated by the Management as a punishment or as a result ofdisciplinary action , rather the termination resulted on the failure of the workman to comply with the conditions of his services . Since the workman remained absent for more than ninety days during May 25 , 1993 , therefore , he was given notice proposing his voluntary retirement from service. The workman did not give any leave application nor informed the respondent about his ill health . The Management has further claimed that a notice to the workman dated 14th October, 1993 was sent under R/C, but the same was received back undelivered. The letter by which the workman was treated to have retired voluntarily on 14th Nov. , 1993 was also received back unserved. They denied that the workman had applied for leave . Admitting that the conciliation proceedings had failed , it is stated by them that the allegation that the Management had made false allegation against the workman is wrong . They also denied that the workman has performed satisfactory duty after his confirmation . It is their claim that the workman used to indulge in the acts of insubordination and misconduct. He was not regular in attending the office since 1998 for which he was issued several memos and letters for unauthorized absence. For those acts his increment were postponed. After remaining absent from duty from 15th Nov. , 1992 to 7748

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

leave and supported his claim with medical certificates . This claim ofthe workman is disputed by the Management. According to them the workman absented from duty, therefore , the management served him with various letters as detailed in para 3 of Written Statement on merits , asking the workman inter alia to substantiate his illness by medical records .He was also told that since he had not rejoined his duties therefore , he is being treated as having retired voluntarily from service . The claim of the workman is that he applied for extension of leave and the Management asked him to submit the detail of his treatment duly supported by X- ray and physiotherapist reports and the doctorsprescriptions . He claimed that he submitted those records but he received no response therefore, he presumed that the Management has sanctioned the leave . The Management has denied this claim of the workman . The workman has failed to produce any evidence to support his claim that he had submitted the medical certificates, X- ray report in support of claim ofhis illness .

The workman further claimed that he shifted to his family house at Kaithal and applied for extension of leave up to 10th August, 1994 and intimated the change ofaddress to the Management. As against to it the Management Claims that the workman used to send applications for leave but he did not convey the change of his address to theManagement. The workman has failed to produce any evidence to show that he had conveyed the change ofhis address to the management . Therefore , it is not provedby the workman that he had conveyed the change of his address to the Management .

The Management admitted that the workman rejoined his duty on 20th March, 1993 but claimed that he again applied for leave from 23rd of March, 1993 to 22nd of April, 1993 and then from 23rd ofApril , 1993 to 23rd of May, 1993. They further claimed that the workman submitted some medical certificates but the Management did not feel satisfied that the workman had genuine cause to be on leave . They further claimed that even when it was certified that he was fit to join his duties still he applied for further leave . Against this assertion of the Management the workman has failed to produce any evidenced to show that he had genuine reasons to be on leave . Thus we find that the workman has failed to dislodge the claim of the Management that the workman had absented from duty without anyjustifiable cause . He did not apply for leave in time. He also failed to substantiate his claim for grant of leave on medical grounds . He further failed to convey the change of his address to the Management . That is why two of the letters sent to him by the Management were received back un- served although in response to the letter oftheManagement , on the same very address the workman visited the Branch of the Management Bank on 20th March, 1993. All this shows that the workman was getting the letters from the Management but he did not respond to their call . How is that he remained absent from duty for years together and did not thought it necessary to inform the management about the change of his address through anymode including by sending his relation if he was really so ill as is claimed. He produced photo copies of medical certificate issued mainly by one private doctor. The

[PART II-SEC . 3 (ii) ] workman did not produce as evidence to prove those certificates to show that he was really ill as is claimed. From his conduct it is clear that he had abandoned the service voluntarily and did not wish to report back for duty. The Management was therefore justified to treat the workman having voluntarily abandond his employment w.e.f. 26th ofNov., 1993. There is no merit in the claim ofthe workman that the termination of his services was illegal , unconstitutional and against the principles of Natural justice and the provisions of the Act.

Inview of the discussion made above the reference is answered against the workman holding that he is entitled to no relief. Let a copy of this award be sent to the appropriateGovernment for necessary action and the file be consigned to records after due completion .

KULDIP SINGH, Presiding Officer नई दिल्ली, 27 अगस्त, 2007 का. आ. 2731.- औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में, केन्द्रीय सरकार यूको बैंक के प्रबंधतंत्र के सम्बद्ध नियोजकों और उनके कर्मकारों के बीच, अनुबंध मेंनिर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार, औद्योगिक अधिकरण/ श्रमन्यायालय नं. -2, चंडीगढ के पंचाट ( संदर्भ संख्या 305/2005 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 23-8-2007 को प्राप्त हुआ था ।

[सं. एल-12011 /284/2000-आई आर ( बी- II ) ] राजिन्द्र कुमार , डेस्क अधिकारी New Delhi , the 27th August, 2007

S.O. 2731. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award Ref. 305/2005 of the Central Government Industrial Tribunal- cum- Labour Court No. 2, Chandigarh as shown in the Annexure , in the Industrial Dispute between the manageinent of UCO Bank and their workmen, which was received by the Central Government on 23-8-2007 .

[No. L- 12011/284/2000- IR (B - II) ] RAJINDER KUMAR, Desk Officer

ANNEXURE

CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL -CUM - LABOUR COURT - II

CHANDIGARH

Shri Kuldip Singh , Presiding Officer CASE I.D. NO . 305/2k5 Registered on : 11-8-2005 Date ofDecision : 19-5-2007

TheGeneral Secretary , UCO Bank Employees Union Central Office , C/o UCO Bank , G.T. Road, Jalandhar (Punjab) .. Petitioner

Versus [ भाग II-खंड 3 (ii) ]

7749

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

The Zonal Manager , UCO Bank, Zonal Office , SCO No. 1092-93 , Sector- 22 -B , Chandigarh

Respondent

APPEARANCE

For the Workman :

Mr: R. K. Walia , Advocate

Mr. N. K. Zakhmi , Advocate

For the Management :

AWARD

were not proved in accordance with law. The show cause notice issued was bad in law as the workman was in no way connected with the job where the irregularities were alleged to have taken place . In fact the irregularities committed by others but were attributed him . The Enquiry Officer did not go into the matter as to how the documents against which the loan was extended came in possession ofdepositors although the loans had not been adjusied by then. The appellate authority also did not apply its mind and acted mechanically and reduced the penalty to " one stage downgrading " . He prayed for setting aside the order ofthe Disciplinary as well as the Appellate Authorities .

The following reference was received from Government of India , Ministry of Labour vide their letter No. L- 12011 /284/2000- IR (B - II) dated 28th ofMarch 2001:

"Whether the action of the Management of UCO Bank in imposing the Penalty of reduction of Pay by one stage in the time scale on Shri S. N. Teneja, Special Asst . of Rohtak Branch is just and legal ? If not , what relief the workman is entitled to ?"

The notice of the reference was given to the parties who appeared through their counsel . The workman filed his statement of claim and the Management their written statement . The workman filed rejoinder and the affidavit of Sh . Krishan Lal , General Secy . of Trade Union as witness ofthe workman. The Mgt . has filed photocopy of the enquiry proceeding .However , I find that the mgt. has not filed the affidavit of their witness in support of their pleadings .

The Management has raised preliminary objections to the maintainability of the reference and submitted that the reference is not maintainable since the workman was guilty of misconduct .He renewed/paid the amount of FDRs which were under the lien of the Management , for having advanced loans against that security, although the loan had not been paid thus the workman discharged the lien withoutjustification . He further committed the lapse in not verifying the signatures of the depositors on the FDRs . Thus he failedto protect the interest of the Bank. He was guilty of misconduct as defined by Clause 19.5 (J ) of the Bipartite Settlement dated 19th October , 1996 read with Shastri/Desai Awards and subsequent Bipartite settlements. Theworkman on notice did not advanced satisfactory reply, therefore , an inquiry was initiated against him , in which, the workman was given full opportunity to prove his innocence,but he failed. The charges against the workman were proved . The findings of the Inquiry Officer were found justified, therefore , after a due notice and hearing him personally the Management punished him with the penalty of reduction in pay scale by two stages . On appeal the Appellate Authority, taking a sympathetic view , reduced the punishment to one stage downgrading , in the pay scale for a period of 2 years .

This tribunal is required to adjudicate upon the fact whether the action of the mgt . of UCO Bank in imposing the penalty of reduction of pay by one stage in the time scale of Sh. S. N. Taneja, Special Asstt . Rohtak Branch is just and legal . If not to what relief the workman is entitled to. The workman has claimed that the mgt . had served upon him the chargesheet on 19-11-1998 , under the signature of Regional Manager alleging the workman having committed misconduct relatingto FDRs as mentioned in the chargesheet. It was alleged that the workman violated the rules and also did not act with due diligence . The workman claims that the charge leveled against him was totally baseless; and that he had acted in accordance with rules and procedure and with bona fide intentions . He further claims that it was the Managerwho , under his own hand , had put the note on the FDRs " Lien Cancelled" and the workman had no authority to question the order of the Manager. According to him the FDRs were the security documents to be retained by the Officer , Loans in-charge and the same could not be released unless the loan was adjusted. The workman was no way connected with the loan department.

The further case of the workman is that the submission made by the workman was not given due consideration . He was not given the notice of appointment ofthe Enquiry Officer nor the same was displayed on the noticeboard. The enquiry was also not held in accordance with prescribed procedure . The workman was not given opportunitytodefend himself. The Enquiry Officer adopted noble procedure. He segregated the articles of charges and included those charges which were beyond the allegations in the charge sheet . The Enquiry Officer acted in a biased manner . He relied upon the documents which

On merits they reiterated the facts stated in the preliminary objections . They denied that the charge against the workman was false . According to them the workman was the incharge of the FDR Department and he had released the lien on those FDRs although FDRs had not . been discharged. He further made the mistake in not verifying the signatures of the depositors on the FDRs and thereby jeopardized the interest of the Bank . He did not exercise due care and diligence while acting in the capacityhe acted and patently overlooked the instructions issued in that regard. He did not advance satisfactory answer to the chargesheet, therefore , the inquiry was initiated against him , in which the charges were found proved. In reply to the show cause notice against the proposed punishment the workman could not give satisfactory answers . Admitting that the DM was fraudulently cancelled by Sh . S. D. Sharma , they stated that the workman overlooked the instructions mentioned in the FDR. Claiming that the Inquiry Officer was appointed asper rules they stated that the workman had attended all the proceedings alongwith his defence representative . The Management followed the provisions of bipartite settlements , Desai Awards and all other relevant instructions . During the inquiry the workman never raised 7750

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

a finger against the proceedings . The charges were proved in the inquiry. The workman did not raise any grievance against the inquiry officer or the manner he conducted the inquiry proceedings . The workman nowhere denied that he had not ignored the lien noted on the FDRs and on the register, while renewing and making the payment ofFDRs . In that situation it did not lie in its mouth to trade the charges against others , without explaining his own conduct properly. The inquiry officer had given full opportunityto the workman defend himself, to produce evidence whatever he liked.Even the Appellate Authority gave the workman personal hearing and it was only after due consideration of the evidence available on record that the workman was held to be guilty of misconduct and was awarded the punishment which was also too lenient to be doubted. The action of the Management was proper, justified and in accordance with the principles of natural Justice . Although the punishment awarded by the Disciplinary Authority was proper still the Appellate Authority reduced the same by taking lenient view in the matter . The inquiry conducted was fair and proper and the punishment awarded was not onlyproper , but very very lenient, therefore , the workman is not entitled to any relief.

The workman filed the rejoinder in which he only reiterated what he had stated in the Claim Petition and claimed that the objections raised by the Management are false , vague and without any basis . Without referring as to how the same are not in accordance with law, the workman has made vague allegations without referring to any particular instance . He has also not been able to say as to how the order passed by the Disciplinary Authority was illegal

Ithas been noted above that the workman filed his affidavit in support of his pleadings whereas the Management did file any. They have however , placed on record a photocopy of the " day to day proceedings" held by the inquiry officer . The question which this Tribunal has to consider at this stage is whether a fair and proper inquiry was held in this case; and that the punishment awarded proportionate to the misconduct alleged and proved against the workman . It has to be borne in mind thatin a reference under the Act , the Tribunal does not sit in appeal against the order of Disciplinary and Appellate Authorities . In the domestic enquiries the Disciplinary Authority is the sole judge of facts and in case an appeal is presented to the Appellate Authority , the Appellate Authority has also the powers and jurisdiction to re- appreciate the evidence and come to its own conclusions on facts being the sole fact finding authorities . Once finding of facts , based on appreciation of evidence , are recorded, the High Court in writ jurisdiction may not normally interfere with those factual findings unless it finds that the recorded findings were perverse and or legally untenable. The adequacy or inadequacy of the evidence is notpermitted to be canvassed before the High Court . What the Tribunal is required to see whether the Enquiry Officer and the Appellate Authority followed the provisions of the I.D. Act and principles of natural justice or not .

Hon'ble Supreme Court in the case of Central Bank of India Ltd. Versus Karunamoy Baneerjee reported as

[PART II-SEC. 3(ii) ]

(1967) 2 LLJ 739 held that the rules of natural justice require that the workman proceeded against should be informed clearly ofthe charges leveled against him; witnesses should be normally examined in his presence in respect of the charges ; if statements, taken previously and given by witnesses, are relied on, they should be made available to the workman concerned; the workman should be given a fairopportunity to examine witnesses , including himself, in support of his defence ; and the inquiry officer should record his findings based on the evidence so adduced. Karnataka High Court in the case of GR Venkateshwara ReddyVs. Karnataka State Road Transport Corporation , reported as ( 1995) 1 LLJ 1011 has laid down the following requirements ofreasonable procedure subject to any special provisions relating to procedure in the relevant rules, regulations , standing orders or a statute:

(a) the employee shall be informed of the exact charges which he is called upon to meet;

(b) he should be given an opportunity to explain any material relied on by the management to prove the charges ;

(c) the evidence of the management witnesses should be recorded in the presence of the delinquent employee and he should be given an opportunity to cross - examine such witnesses;

(d) the delinquent employee shall either be furnished with copies of the documents relied onby the Management or be permitted to have adequate inspection of the documents relied on by the Management;

(e) the delinquent employee should be given the opportunity to produce relevant evidence- both documentary and oral which include the right to examine self and other witnesses ; and to call for relevant and material documents in the custody of the employer ;

(f) whenever the inquiring authority is different from disciplinary authority , the delinquent employee shallbe furnished with a copy ofthe inquiry report and be permitted to make a presentation to the disciplinary authority against the findings recorded in the inquiry report.

> Keeping these principles in mind I proceed to examine the claim of the workman to find out whether the enquiry held against the workman was fair and proper or not . After going through the record of enquiry proceedings I find thatthe enquiry held against the work was fair and proper . The workman in paras No. 3 and 4 of his claim petition admitted that the Management had served upon him the chargesheet . The workman nowhere claimed that he had not dealt with the job of FDRs ( Fixed Deposit Receipts) in question or that he had not renewed the same or authorized the payment thereof. He also did not deny both FDRs were under the lien of the Management having been retained as a Security for the loan extended to the holder of those 7751 [भाग II-खंड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

the workman asked for any documents the inquiry officer saw to it that the same were provided to the workman well before the same were to be considered . The workman has therefore failed to show that the inquiry against him was not conductedproperly and fairly.

FDRs . He only alleged that it was not part of his dutyto dealwith the loan department or with the FDRs in question . So the lapse committed was not a part of his official duties . He further claimed that he had acted in a bona fide manner and the Manager, who had cancelled the lien, under his own authentication , was the person responsible . I fail to understand this claim of the workman for the reason that he was an employee of the Bank and was supposed to act, bykeeping his eyes open and due diligence . Had he raised objection to the cancellation of the lien , as was accepted of him, his bona fide could be accepted. To say that he was not assigned the job of loan department or that the lien was not cancelled by him so , therefore , he was not responsible for that is no answer to the misconduct alleged against him.

The next question is , whether the punishment awarded to the workman was disproportionate or proper . After going through the record I am of the opinion that the punishment awarded was not only proper, but very very lenient . How could a financial institution afford the inisconduct of its employee who by his conductjeopardizes its interest although from which he was earning his livelihood from it. It was the institution which was holding the trust of investors . The money advanced by the bank was the money of the people and if the loanee succeeded in getting the lien cancelled and the money withdrawn , withthe help ofthe workman , the conduct of the workman was against the interest of the Bank, as well as the depositor . I feel that the Management was very considerate to give him a light punishment . After going through the file and the submissions made by the parties I am of the opinion that the workman is not entitled to any relief. The award is passed against him . Let a copy of this award be sent to the appropriate Government for necessary action and the file be consigned to records after due completion.

KULDIP SINGH , Presiding Officer नई दिल्ली, 28 अगस्त, 2007

का. आ. 2732.- 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 89/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/32/1999- आई आर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

NewDelhi , the 28th August, 2007

S.O. 2732.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 89/ 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 28-8-2007 .

[No. L- 12012/32/ 1999 - 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 In his statement of claim he made charges against the inquiry officer , the Disciplinary Authority and the Appellate Authority claiming that the inquiry officer and the Disciplinary Authority did not take note of the fact that the charges framed against him did not relate to his official duties; that the submission made by him was not given the due consideration and the inquiry was not held in accordance with the rules of procedure nor he was given opportunity to defend hiinself. The inquiry was conducted in a biased manner . He raised procedural contentions , but I find that in support of his all these allegations he has not clearly pointed out the conduct of the Inquiry Officer nor referred the rules concerning the inquiry and the conduct ofbusiness for issuing FDRs and grant of loan in support ofhis claim. The grievances raised by him are vague and not specific , therefore, he has failed to show to what conduct of the inquiry officer showed that he was biased against him and why he was so , he has not show. Ifwe look intothe inquiry proceedings it is crystal clear that the inquiry was held against the workman in a fair and proper manner . As stated above, the workman has not denied that he was the person who had dealt with the FDRs and was instrumental in getting the lien cancelled , over the FDRs in question. He has only raised the claim that he was not really assigned the job of those FDRs , loans , therefore he was not responsible of the Lien being cancelled under the hand of the Manager. The fact remains that he was instruïnental in dealing with those FDRs and that the FDRs were the security against the loan extended by the Management and by his conduct he helped in jeopardizing inthe interest of the Management . The Management acted in a fair manner and provided full opportunity to the workman to defend himself. He took part in all the proceedings he was represented by Sh . R. K. Walia . He was provided with the details of the documents to be produced against him . The workman gave his reply to the charge sheet and requested for dropping the charges . The witnesses produced by the Management were cross examined by the representative of the workman . He produced witnesses in liis defence like V. K. Verma, A. K. Kapoor . The representative of the workman filed his subinissions in writing . I further find that in the inquiry proceedings the workman and his representative nowhere raised any finger about the manner the inquiry, was conducted. Rather the proceedings shows that whenever 7752

[PART II-SEC . 3 (ii )] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

INDUSTRIAL DISPUTE NO . 89/2004

(Principal Labour Court CGID No. 264/99)

[In the matter of the dispute for adjudication under clause (d) of Sub- section ( 1 ) and Sub - section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen]

BETWEEN

Sri G. Sethuraman

: I Party/Petitioner

AND

The Assistant General : II Party/Management

State Bank of India,

Zonal Office ,

Manager, Madurai .

APPEARANCE

Forthe Petitioner : Sri V..S . Ekambaram,

Authorised Representative

M/ s. K. Veeramani ,

For the Management :

Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/32 /99 - IR (B - I ) dated 10-5-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 264/99 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. 89/2004 .

2. The Schedule mentioned in that order is as

follows:-

"Whether the demand of the workman Shri G. Sethuraman, wait list No. 245 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: -

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 , theRespondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager oftheJayamangalam branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But , they have not informed the result of interview and also with regard to appointment. But, the Petitioner was informed orally tojoin at the branch where he initially worked asa class IV employee. From 14-06-1983 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Theppakulam Madurai branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non- employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Section 25G and 25H of the I. D. Act .

The 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 Jayamangalam branch from 14-06-1983 . 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 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 7753 भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

[भाग II- खंड 3 (ii ) ]

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 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 employinent 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 he considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended 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 of492 wait listed candidates, 219 temporary employees were appointed and since the Petitioner was wait listed at 245, he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and hisclaim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment 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 saythat documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the 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 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication bythis Tribunal itself is not maintairiable. 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 thathe was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 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 waitlisted as candidate No. 245 in wait list of ZonalOffice , Madurai . So far 219 wait listed temporary candidates , out of492 waitlisted temporary employees were permanently appointed by Respondent /Bank . It is false to allegethat the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having 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 temporaryorary 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

3725G1/07-40 7754

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

[PART II-SEC. 3(ii)]

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 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 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. 245 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/Barık 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 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 hasheld that Chapter V- A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that onbehalfofthe Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further, a combined study of Ex . Ml and the averments of MW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has given a rawdeal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 ofEx . 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 . 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 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 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 itis not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent'Bank without any intintation 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 [भाग II-खंड 3 (ii ) ]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

7755 casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staffmatters , copyofwhich is marked as Ex. WC .Purther, the appointmen of daily wage basis for regalar messengerial jobs etc. are strictly prohibited as per berka 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 giver permanent appointment in the bank service. Those casuals were given more beavirini treatment in the inatter 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 ar instructions in Ex . W2 four types ofwaiting lists have to be prepared. But the Respondent/Bank has alleged to theve prepared only one wait list for each module as per Ex. M10 in this case . Those candidates under Ex . M10 wen 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 x .MI , 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 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 circunstances, 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/Bankby 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 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 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 ofArticles 14 and 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex . M10 namely wait list is not inconformity with the instructions of Ex . M2 and

non-preparation of separate panels amounts to violation of circular. Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released/published even after the Court order in WMP No. 11932/91 and W. P. No. 7872/91 directing ine 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. MIO does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things, it is clear that Ex . M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . MI was not producedat the tim 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 appointinent 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 fies 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 categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative of the Petitioner relied on the ralings reported in 1985 4 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 which has been drawn up is contrary to law and also bad in law. Thus, the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2( e ) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . TheRespondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment ofMW1 . Therefore , the termination ofthe 7756

[PART II SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

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.

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 . 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 mar.agement 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 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 workınen 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

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 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 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 anyunion and the settlements were bank level settlements and operate throughout the country. Further , he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence ofplea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent , it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttlingthe 7757 [ भाग II- खंड 3( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 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 I LLJ 308 K.C.P.Ltd. Vs. Presiding Officer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 ( 1) of the I.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18 ( 3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category , if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the 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 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 of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot gobeyond the order of reference , ifpoints of difference are discernible from the material before it , it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein 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 isexpected to decide the real nature of disputes between the parties and with that object in view , it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and 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 .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent /Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

13. I 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/ 7758

THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC. 3 (ii) ] Bank, I find the Petitioner is not entitled to question the settlement.

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 Union of India and Others Vs. K. V. Vijeesh wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in 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 removedfrom the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents thatthe 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 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 cannotbe said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry ofthe date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 State 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 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 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 presumptionmay bejustified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other. Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It canncannot 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 , 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 Courthas held that " they are temporary employees working [ भाग II-खंड 3( ii) ]

7759

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 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 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 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 .

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 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 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 seniements 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.

15. Learned Senior Advocate further argued that evenin recent decision reported in 2006 4 SCC 1 Secretary , State ofKarnataka Vs. Uma Devi , the Supreme Court has held that " inerely 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 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 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 made permanent merely on the strength of such continuance, if

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 7760

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent/Bank.

18. Further, the representative for the Petitioner 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 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 ?

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 andpronounced by me in the open Court on this day the 31st January, 2007.)

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Forthe Petitioner : WW1 Sri G. Sethuraman

WW2 Sri V. S. Ekambaram For the Respondent : MWI Sri C. Mariappan

MW2 Sri M. Perumal

Documents Marked :

Ex. No. Date

Description

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

W2 20-04-88 Хегox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 .

[PART II-SEC . 3 (ii) ]

Ex. No. Date

Description

W3 24-04-91 Xerox copy of the circular of Respondent/ Bank to all Branches regarding absorption of daily wagers in messenger vacancies .

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 Xeгox 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 18-06-84 Xerox copy of the service certificate issued by Theni branch.

W10 03-06-88 Xerox copy of the service certificate issued by Jayamangalam branch .

W11 13-03-95 Xerox copy of the service certificate issued by Theni branch .

W12 02-04-97 Xerox copy of the service certificate issued by Theppakulam branch.

W13 Nil

Xerox.copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding appointment of temporary employees .

W14 Nil

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

W15 06-03-97 Xerox copy 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 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 ofpart time Menial G. Pandi .

7761 [ भाग II-खंड 3 ( ii) ]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

Ex . No. Date

Description

नई दिल्ली, 28 अगस्त, 2007

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 .

का. आ. 2733.- 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 87/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । W22 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

[सं. एल-12012/41/1999- आई आर ( बी -1 ) ] अजय कुमार, डेस्क अधिकारी W23 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

New Delhi , the 28th August, 2007 W24 09-07-92 Xerox copy of the minutes of the 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 .

S.O. 2733.- In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 87/ 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 28-8-2007 .

[No. L- 12012/ 41 / 1999 - IR (B- I) ] AJAY KUMAR, Desk Officer

ANNEXURE

W26 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

W27 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre.

Wednesday, the 31st January , 2007 For theRespondent/Management :

PRESENT

Ex. No. Date

Description

K. Jayaraman , Presiding Officer

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

INDUSTRIAL DISPUTE No. 87/2004 M2 16-07-88 Xerox copy of the settlement.

(Principal Labour Court CGID No. 261/99) M3 27-10-88 Xerox copy of the settlement .

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

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

[In the matter of the dispute for adjudication under clause (d) ofsub - section ( 1 ) and sub - section 2 (A) ofSection 10 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , between the Management of State Bank of India and their workmen]

BETWEEN

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

SriA. Raju

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

AND

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

: II Party/Management The Assistant General Manager,

State Bank of India , Z.O. Madurai .

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 Madurai Module.

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

For the Management : Mr. B. Rajendran , Advocate

M11. 25-10-99 Xerox copy of the order passed in CMP No. 16289 & 16290/99 in W.A. No. 1893/99.

3725 Gl/07-41 7762

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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

The Central Government, Ministry of Labour vide Order No. L- 12012/41 /99 - IR(B - I ) dated 10-5-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 261/99 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. 87/2004.

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

"Whether the demand of the workman Shri A. Raju , wait listNo. 339 for restoring the wait list oftemporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? Ifso, to what relief the said workman is entitled ?"

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

Usilampatti 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 thenumber 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 notmerit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination. He was appointed on temporary basis atUsilampatti branch from 1-1-1982 . 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, 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 informedthe 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 1-1-1982 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Valendur,

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 [भाग II-खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31, 1929

7763

werenot questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act , 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correctto saythat documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work 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 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 .

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.

5

:

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. 339 in wait list ofZonal Office, Madurai . So far 219 wait listed temporary candidates , out of 492 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence, they were appointed. Under the settlement, employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of36 calendar months were to be considered . As per Clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended 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 of492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listedat 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

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank ofIndia Staff Federation were under Section 18 (1 ) of the Act and not under Section 18 (3) of the Act. As per recruitment rules ofthe Respondent/Bank, recruitment ofclass IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

7764

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

[PART II-SEC. 3 (ii) ] 7. In these circumstances , the points for my consideration are :-

(i) "Whether the demand of the Petitioner in Wait List No. 339 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 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 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.

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 ofIndia Vs. S. Satyam and Others the Supreme Courthasheld that Chapter V- A of the I. D. Act providing for retrenchment is not enacted only for the benefit of the workmen 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 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 rawdeal 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 inClause 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 todo 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 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. 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 9-1-91 which are marked as Ex. M1 , M3 and M4 respectively.

7765 [ भाग II-खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in theMadras circle since the High Court order is there, but he has not produced any document in 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 as per Bipartite 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 ofConstitution of India . ' Further , the averment of MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle 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 MWI 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 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 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 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

appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2( oo) ofthe I. D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuouslywhich is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status. and privileges of permanent workmen is illegal . " Learned representative further contended that Ex. M10 wait list has notbeenprepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . 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) 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 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 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 . 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 7766

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 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 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 Courthas held that " the expression ' actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc." . It is further argued that call letters produced 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.

10. But , as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case. The Petitioner inthis case and the Petitioners in the connected disputes were not in continuous service . Hence, the question of regular appointment/ absorption does not arise at all and their engagement was not authorised . Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisións 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 aremade with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length ofhis engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business

exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation 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 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 inajority 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 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 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 [ भाग II- खंड 3 (ii) ]

7767

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

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 samę.

cannot go behind the terms of reference , but that does not meanthat it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. Sambanthan Vs. Presiding Officer, Labour Court, Madras , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal 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 .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated inservice with full back wages etc. Hence, the Petitioner's contention against the reference made by the Govt. is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

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 .

12. But, as against this on behalf of the Petitioner it iscontended that mere wording ofreference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot gobeyond the order of reference, ifpoints ofdifference 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 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein the Madhya Pradesh High Court has held that "the Tribunal

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he shouldbe reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 Union of India and Others Vs. K. V. Vijeesh wherein the Supreme Court has held that "the only question which falls for determination in this appeal 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 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 7768

[PART II-SEC. 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical actbut ajudicious one. From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 II SCC 1 Ashwani Kumar and Others Vs. State of Bihar and Others wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned . But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility . It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore, learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption inthe Respondent/Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 Himanshu Kumar Vidyarthi & Ors. Vs. State of Bihar and Ors . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore , cannot be stretched to 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 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 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.

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 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 enteredby aback door; (c) he was not eligible and qualified for the post at the time ofhis appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 whích 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 hat in each and every case , such a direction must follow [भाग II-खंड 3(ii) ]

7769 भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31, 1929

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 inthe 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 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.

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 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 reoruitment 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 original appointment was not made by following a due process of selection as envisaged by relevant rules ." Further, in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmationof an employee upon the expiry of purported 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

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 casemustbe 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 3725G1/07-42 7770

THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

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 ?

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

Ex. No.

Description

W9 22-08-88 Xerox copy of the service certificate issued by Usilampatti branch .

W10 04-03-93 Xerox copy of the service certificate issued by Usilampatti-Valandur branch.

W11 03-01-94

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 .

Xerox copy of the service certificate issued by Usilampatti branch.

W12 19-05-97 Xerox copy of the service certificate issued by Usilampatti branch .

W13 Nil

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 daythe 31st January, 2007. )

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding appointment of temporary employees .

W14 Nil

K. JAYARAMAN, Presiding Officer Witnesses Examined :

For the Petitioner : WWI Sri A. Raju

WW2 Sri V. S. Ekambaram For the Respondent : MWI Sri C. Mariappan

MW2 Sri M. Perumal

Documents Marked:

Date

Ex. No.

Description

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

W15 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

W16 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W17 06-03-97

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. M1 .

W3 24-04-91

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

W18 17-03-97 Xerox copy of the service particulars-. J. Velmurugan.

W19 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi .

W20 31-03-97

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

W4

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

W21 Feb. 2005

01-05-91 Xerox copy of the advertisement in The Hindu ondaily wages based on Ex . W4 .

W5

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

W22 13-02-95

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 ofZonal 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 messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work .

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

W23 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

09-07-92

W24

Xerox copy ofthe 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 .

[ भाग II- खंड 3 ( ii) ]

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

7771 Ex. No. Date

Description

ANNEXURE

W26 07-02-06

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

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

Wednesday, the 31st January, 2007

PRESENT

W27 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

K. Jayaraman, Presiding Officer For the Respondent/Management :

INDUSTRIAL DISPUTE NO . 55/2004 Ex. No. Date

Description

(Principal Labour Court CGID No. 77/99) 17-11-87 Xerox copy of the settlement. M1

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

M3 27-10-88 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 ofthe Industrial Disputes Act , 1947 (14 of 1947) , between the Management of State Bank of India and their workmen] M4 09-01-91 Xerox copy of the settlement .

BETWEEN

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

Sri P. Pitchumani

: I Party/Petitioner

AND

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

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

The Assistant General Manager, StateBank of India , Z.O. Madurai .

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

APPEARANCE

M9 10-07-99 Xerox copy of the order ofSupreme Court in SLP No. 3082/99 .

M10 Nil

Forthe Petitioner : Sri V. S. Ekambaram, Authorised Representative Xerox copy of the wait list of Madurai Module.

For the Management : Shri R. Krishnamachari , Advocate AWARD

M11 25-10-99 Xerox copy of the order passed in CMP No. 16289 & 16290/99 in W.A. No. 1893/99 .

नई दिल्ली, 28 अंगस्त, 2007

का. आ. 2734.- 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 55/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था ।

The Central Government, Ministry of Labour vide Order No. L- 12012/263 /98 - IR (B - I) dated 5-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 77/99 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 L D. No. 55/2004.

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

[सं. एल-12012/263/1998- आई आर ( बी- I ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 28th August, 2007

"Whether the demand of the workman Shri P. Pitchumani, wait list No. 407 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:-

S.O. 2734. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 55/ 2004) of the Central Government Industrial Tribunal- cum- Labour Court , Chennai as shown in the Annexure , in the Industrial Dispute between the management ofState Bank of India and their workmen, which was received by the CentralGovernment on 28-8-2007 .

[No. L- 12012/263/ 1998 - IR (B -I) ] AJAY KUMAR, Desk Officer

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre inState Bank of India and he was given appointment [PART II SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

7772

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 thetemporary 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 to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Section 18 ( 1 ) and 18 (3 ) of I. D. Act in lieu ofprovisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length 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 ) 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 waitlisted as candidate No. 407 in waitlist of ZonalOffice , Chennai . So far 219 wait listed temporary candidates, out of492 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 as messenger after an interview and medical examination. He was appointed on temporary basis atTiruchandur branch from 12-12-1983. The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank, in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Tiruchendur 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 12-12-1983 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Tiruchendur 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 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 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 7773 [भाग II-खंड 3 ( ii) ]

भारत का राजमत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent/Bank imposed . total ban for his future employment. Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank hasbeen arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence , the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India StaffFederation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rulesof the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner. Hence , the Petitioner prays that an award may be passed in his favour.

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

(i) "Whether the demand of the Petitioner in Wait List No. 407 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 :

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 492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 407 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has nojurisdiction to entertain such plea . It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per 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 ofChennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs..

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars 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 5. In the additional claim statenient , 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 7774

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

[PART II-SEC . 3( ii) ] 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 deniedanopportunity to work in the bank after 31-3-1997 andtherefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits.

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18(1) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars /guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V- A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as 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 Courthas 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. M1 and the averments ofMW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking his future 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 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 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 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 on2-5-92 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. 78.72 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 circunıstances , 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 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 MWI 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 [भाग II-खंड 3 ( ii) ]

7775

भारत का राजपत्र : सितम्बर 22, 2007/ भांद्र 31 , 1929

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 tothe 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 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 inTheHindu dated 1-8-88 . Furthermore , wait list under Ex . M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex . M10 has been prepared 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 . Itis 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 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 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 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 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 s 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 Courthas held that "the expression ' actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc." . It is further argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the [PART II-SEC . 3 (ii) ] 7776

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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.

*

the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same . To that extent , it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases , where there may be allegations ofmala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs. Presiding Officer and Others wherein the Supreme Court has held that " 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 underSection 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised 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 contestingworkmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at bythe free will ofthe parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable, " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore, it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

10. But , as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view 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/ Bankand the claim ofthe 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 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 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 ofthe Bombay High Court has held that "therefore a settlement arrived at in the course of

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 7777

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

[भाग II-खंड 3 (ii) ]

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 theRespondent/ Bank, I find the Petitioner is not entitled to question the settlement .

:

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 Union of India and Others Vs. K. V. Vijeesh wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right 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 thatthe panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because . of inclusion of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus misconceived and therefore, the learned Single Judge and the Division Bench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively." He further relied on the rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry ofthe date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for 12. But, as against this on behalf of the Petitioner it is contended that mere wording ofreference is not decisive inthe matter of tenability ofa reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal, Kollam wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. Sambanthan Vs. Presiding Officer , Labour Court , Madras , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which wouldprolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view , it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the 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.

3725 Gl/07-43 7778

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31, 1929

[PART II SEC. 3 (ii)]

3

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 disengagementfrom service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only 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 .

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 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 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

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" merelybecause a temporary employee or a casual wageworker is continued for a time beyond the term ofhis appointment, he would not be entitled to be absorbed in : regular service or made permanent merely on the strength of such continuance , if the original appointment was not madeby following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware 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 [भाग II-खंड 3(ii) ]

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 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 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 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 . "

7779

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

to preparation of wait list and also settlements entered into betweenthe 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 forreinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought aboutby the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him. Therefore , I find this point against the Petitioner.

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 reliefas 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 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

: WW1 Sri P. Pitchumani WW2 Sri V. S. Ekambaram For the Respondent : MW1 Sri C. Mariappan MW2 Sri M. Perumal 7780

THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

[PART II-SEC. 3(ii) ] Documents Marked:

Ex. No. Date

Description

Date

Ex. No.

Description

W17 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

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

A W18 Feb. 2005

W2 20-04-88

Xerox copy of the pay slip of T. Sekar forthemonth ofFebruary, 2005 wait list No. 395 ofMadurai Circle.

Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . Ml .

W19 13-02-95

W3 24-04-91

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

W20 09-11-92

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

W4 01-05-91

Xerox copy ofthe Head Office Circular No. 28 regarding norms for sanction of messenger staff.

Хегоx copy of the advertisement in The Hindu on daily wages based on Ex . W4.

W21 09-07-92

W5 20-08-91

Xerox copy ofthe minutes ofthe Bipartite meeting.

W22 09-07-92

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 .

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 .

W7 25-03-97

W23 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as 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 .

W24 31-12-85

W8 Nil

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 domessengerial work .

For the Respondent/Management :

W9 Nil

Ex. No. Date

Description

Xerox copy of the service particulars of Petitioner issued by Tiruchendur branch.

M1 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.

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

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

W11 Nil

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

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

M6 09-06-95

W12 06-03-97

Xerox copy of the minutes of conciliation proceedings .

M7 28-05-91

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

Хегох copy of the order in W.P. No. 7872/91 .

W13 06-03-97

M8 15-05-98 Хегоx 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-K. Subburaj .

M9 10-07-99

W14 06-03-97

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

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

M10. Nil

W15 17-03-97

Xerox copy of the wait list of Madurai Module.

Xerox copy of the service particulars- J. Velmurugan.

M11 25-10-99

W16 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 & 16290/99 in W.A. No. 1893/99 .

[भाग II-खंड 3 (ii) ]

नई दिल्ली, 28 अगस्त, 2007 का. आ. 2735.-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 91/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 28-08-2007 को प्राप्त हुआ था ।

[सं. एल-12012/534/1998- आई आर ( बी-1 ) ]

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

7781

AWARD

The Central Government , Ministry of Labour vide OrderNo. L- 12012/534/98 - IR (B - I) dated 22-04-1999 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. 268/99 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. 91/2004.

अजय कुमार , डेस्क अधिकारी

New Delhi , the 28th August, 2007 1

S.O. 2735. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 91 / 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 28-08-2007 .

[No. L- 12012/534/ 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 . 91/ 2004- (Principal Labour Court CGID No. 268/99) [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 the Management ofState Bank of India and their workmen]

BETWEEN

Sri V. Karuppusamy :I Party/Petitioner

AND

The Assistant General

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

"Whether the demand of the workman Shri Karuppusamy wait list No. 290 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, StateBank of India, ZonalOffice,

Madurai .

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram , Authorised Representative For the Management : M/s. K. Veeramani , Advocates

The Petitioner was sponsored by Employment Exchange for the post of sub -staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis atDindigul branch from 26-07-1984. 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 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 Dindigul 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 26-07-1984, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Dindigul 7782

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

branch , another advertisement by the Respondent/ Bankwas made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non- employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence, since according to the Respondent/ Bank, it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number ofdays worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/ Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal. Further , the settlements are repugnant to Sections 25G and 25H of the I. D. Act. The termination of the Petitioner is against the provisions of para 522 (4) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation ofrelevant provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts 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 .

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 waitlisted as candidate No. 290 in wait list of Zonal Office , Madurai . So far 219 wait listed temporary candidates , out of492 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 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 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 of492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 290 , he was not appointed. The said settlements were bona fide which were the only workable solution and isbinding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 (1 ) and 18 (3 ) ofI . D. Act in lieu ofprovisions of law, retrenchment and implemented by Respondent/Bank .

[भाग II-खंड 3 ( ii) ]

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भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

(ii) "To what reliefthe Petitioner is entitled ?"

Point No. 1 :

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 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 concerried 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 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 :---

(i) "Whether the demand of the Petitioner in Wait List No. 290 for restoring the wait list of

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 [PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

7784

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 ofMWI and the statements in Counter Statement are contrary to the ahove and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated by the Respondent/Bankby combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both 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 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 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 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 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) ofthe I. D. Act , 1947. Though the Petitioner's 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 ofIndia Vs. S. Satyam and Others the Supreme Court hasheld that Chapter V- A of the I. D. Act providing for retrenchment is not enacted only for the benefit ofthe workmen to whom Section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that on 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 ahsorption 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 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) 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 ofwaiting lists have to be prepared. But the Respondent/Ba 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-whichare 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 , [ भाग II-खंड 3 (ii) ]

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भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service 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 of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour.

work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further , the representative of the Petitioner relied on the rulings reported in 19854 SCC 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those whojoined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus, the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2(e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also 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 only with regard to modification of Ex . M1 to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 and W. P. No. 7872/91 ceased 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

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 aremade with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was erigaging 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 3725 Gl /07-44 7786

[PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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 settlernent with the bank and therefore, it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

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 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 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 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 К.С.Р. 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 ) ofthe I.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . Asettlement of the first category has limited. application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding onall 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 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

12. But, as against this on behalf of the Petitioner it iscontended that mere wording ofreference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference , 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 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 [भाग II-खंड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

7787 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 19963 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 coinparative 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 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 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 DivisionBench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him. Further, he relied on the rulings reported in 1992 LAB IC 2168 State of Haryana and Ors . Vs. Piara Singh and Others wherein the Supreme Court has held that " now coming to the direction that all those ad hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence ofa vacancy . The direction in effect means that every ad hoc/temporary employee who has been continued for one year should be regularised even though (a) 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 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 ofan ad hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of oneunit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one. From this , the impugned [PART II-SEC. 3 (ii) ] 7788

THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

directions must be held to be totally untenable and unsustainable. Thus , the Supreme Court set aside the orders oflower Courts . He further relied on the decision reported in 1997 II SCC 1 Ashwani Kumar and Others Vs. State of Bihar and Others wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question ofconfirmation of these employees whose entry 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 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 , 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 .

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 oftemporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that "unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee. .It has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service, or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh, wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation ofan employee upon the expiry of purported periodofprobation would not arise . " Further , in CDJ 2006 SC 395 Municipal Council , Sujanpur. Vs. Surinder Kumar , the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the rneaning 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 , [भाग II-खंड 3 (ii) ]

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भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 ; 1929

Point No. 2 :

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.

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this daythe 31st January , 2007.)

K. JAYARAMAN , Presiding Officer

Witnesses Examined :

For the Petitioner : WW1 Sri V. Karuppusamy 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner. has not been appointed for regular póst nor has he been appointed in regular vacancy or sanctioned post, the Petitiorfer is not entitled to claim regularisation ofhis service . Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the waitlist prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so. Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparation of wait list or number allotted to them. Under such circumstances , it cannot be questionedby the Petitioner.

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.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 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 .

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

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.

15-03-97 Xerox copy of the circular letter ofZonal Office, Chennai about filling up of vacancies of messenger posts .

:

W7 25-03-97 Xerox copy of the circular of Respondent /Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil

Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at, office /branches to 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/Bankas alleged by him. Therefore, I find this point against the Petitioner.

W9 04-09-85 Xerox copy of the service certificate issued by Dindigul branch .

7790

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

Ex. No. Date

Description

W10 Nil Xerox copycopy of the service certificate issuedby Dindigul branch .

[PART II-SEC. 3 ( ii) ] For the Respondent/Management :

Ex. No. Date

Description

M1 17-11-87

W11 Nil

Xerox copy of the settlement .

Xerox copy of the settlement.

M216-07-88

Xerox copy of the administrative guidelines in reference book on staff matter issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

W12 Nil Xerox copy of the Reference book on staff matters Vol . III consolidated upto 31-12-95.

W13 06-03-97 Xerox copy ofthe call letter from Madurai zonaloffice for interview of messenger post-V. Muralikannan .

W14 06-03-97 Xerox copy ofthe call letter fromMadurai zonal office for interview of messenger post-K. Subburaj .

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 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 in SLP No. 3082/99 .

M10 Nil

W15 06-03-97

Xerox copy of the wait list of Madurai Module.

M11 25-10-99

Xerox copy ofthe call letter fromMadurai 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 MenialG. 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 Module Circular letter about engaging temporary employeesfrom 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 the 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.

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

नई दिल्ली, 28 अगस्त, 2007

का. आ. 2736.- 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 261/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-08-2007 को प्राप्त हुआ था । [सं. एल-12012/458/1998- आई आर ( बी-I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 28th August, 2007

S.O. 2736. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 261 / 2004) of the Central Government Industrial Tribunal-cum- Labour Court , Chennai as shown in the Annexure , in the Industrial Dispute between the management ofState Bank of India and their workmen, which was received by the Central Government on 28-8-2007 .

[No. L- 12012/458/ 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 [ भाग II -खंड 3 (ii) ]

7791

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

INDUSTRIAL DISPUTE NO . 261/2004

(Principal Labour Court CGID No. 205/99)

[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

SriE. Thirumoorthy : I Party/Petitioner

AND

The Assistant General : II Party/Management

Manager, State Bank of India, ZonalOffice, Chennai

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram,

Authorised Representative

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

Advocates

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012/458 /99 - IR( B - I) dated 11-3-1999 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. 205/99 and issued notices to both partjes . 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. 261/2004.

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

"Whether the demand of the workman Shri E.Thirumoorthy, wait list No. 370 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 ofIndia and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis atGuindy branchfrom May, 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 Guindy branch . He was called for an interview by a Committee appointed by Respondent/ Bank in this regard . But , they have not informed the result of interview and also with regard to appointment. But, the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee . From May , 1984, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in CAG branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence , the Petitioner raised a dispute with regard to his non- employment. Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance ofthe Petitioner , he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand 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 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 7792

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

[PART II SEC. 3 (ii) ] 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 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 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 upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of744 wait listed candidates , 357 temporary employees were appointed and since the Petitioner was wait listed at 370, he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act , 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correct to saythat documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 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 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.

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. Ast 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 waitlisted as candidate No. 370 in wait list of Zonal Office, Chennai . So far 357 wait listed temporary candidates, out of 744 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Underthe settlement, employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ( B) the temporaryter employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar

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 7793 [भाग II-खंड 3( ii) ]

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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 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 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 settlementdated 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. 370 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 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 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

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 Central Bank ofIndia Vs. S. Satyam and Others the Supreine 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 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 3725Gi /07-45 [PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

7794

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 ofinitial 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 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 . Itis 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 oftemporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2(oo) of the I. D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which isstill in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that "to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex . M10 wait list has notbeenprepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . 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 ofappointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MWI . Therefore , the termination ofthe 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 bas alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers. Even MWI is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. M1 , M3 and M4 respectively. But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included 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 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 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 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 behalfof 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 belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 and 16 of Constitution of India. Therefore, the Petitioner contended that preparation of Ex. M10 namely wait list is not inconformity with the instructions of Ex . M2 and non- 7795 [भाग II-खंड 3 (ii) ]

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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 .

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 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 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 Courthas held that " the expression ' actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. ". It is further argued that call letters produced 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

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 thematerial 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 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 1180 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 7796

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

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference , if points of difference are discernible from the material before it, it has only on duty and that is to decide 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 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 tothe 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.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt. is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

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/ [ भाग II-खंड 3 (ii) ]

भारतेका राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

7797 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 shouldbe reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 Union of India and Others Vs. K. V. Vijeesh wherein the Supreme Court has held that " the only question which falls for determination in this appeal 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 fromthe 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 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 ofHaryana 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 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 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 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 , ifthe candidate concerned is appointed in an irregular manner or on adhoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility . It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees, therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 Himanshu Kumar Vidyarthi & Ors. Vs. State of Bihar and Ors . wherein the Supreme Court has held that " they are temporary employees working [PART II-SEC . 3 (ii) ] 7798

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 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 daily wage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of 'last come- first go ' is not mandatory but only directory, onsufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank . 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 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 SC395Municipal Council , Sujanpur Vs. Surinder Kumar , the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation ofconstitutional 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 decision, learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation ofhis service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the waitlist prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so. Further , their prayer before the labour authorities 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 settleinents 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 .

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 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 il legalities 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

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 [भाग II-खंड 3 ( ii) ]

7799

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services 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 .

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.

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open Court on this daythe31st January, 2007.)

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Forthe Petitioner : WW1 Sri E. Thirumoorthy

WW2 Sri V. S. Ekambaram For the Respondent : MWI Sri C. Mariappan

MW2 Sri C. Ramalingam Documents Marked :

Ex. No. Date

Description

W1 01-08-88 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 .

Ex. No. Date-

Description

24-04-91

W3 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/ Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil

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

W9 23-06-86 Xerox copy of the service certificate issued by Guindy branch.

W10 11-11-93 Xerox copy of the service certificate issued by Meenambakkam Airport branch.

W11 06-02-98 Xerox copy of the service certificate issued by NRI branch .

W12 06-02-98 Xerox copy of the service certificate issued by NRI branch .

W13 23-01-02 Xerox copy of the service certificate issued by CAG branch .

W14 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 .

W15 Nil Xerox copy of the Reference book on staff matters Vol . III consolidated upto 31-12-95.

W16 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

W17 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

W18 06-03-97 Xerox copy ofthe 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.

7800

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA31 , 1929

Ex. No. Date

Description

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 orderto Sri G. Pandi .

W22 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle.

W23 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel ofwait 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 oftheBipartite meeting.

W26 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 .

W27 07-02-06 Хегох сору 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 circularabout appointment of temporary employees in subordinate cadre.

For theRespondent/Management :

Date

Ex. No.

Description

MI

Xerox copy of the settlement. 17-11-87

M2

Xerox copy of the settlement .

16-07-88

M3

Xerox copy of the settlement .

27-10-88

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

M5

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 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 Chennai Module.

25-10-99

M11

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

[PART II-SEC. 3(ii) ] नई दिल्ली, 28 अगस्त, 2007

का. आ. 2737.-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 105/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । [सं. एल-12012/367/1998- आई आर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 28th August, 2007

S.O. 2737. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 105/ 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 28-8-2007 .

[No. L- 12012/367/ 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. 105/2004 (Principal Labour Court CGID No. 93/99)

[Inthe 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

SriS.Nagarajan

: I Party/Petitioner AND

The Assistant 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. V. Sundar Anandan , Advocates

AWARD

The Central Government, Ministry of Labour vide OrderNo. L- 12012/367/98 - IR(B- I) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Principal 7801 [भाग II- खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 93/99 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. 105/2004.

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

"Whether the demand of the workman Shri S. Nagaarajan , wait list No. 304 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled ? "

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

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 ofrelevant provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work eitherby payment ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of 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 of engagement and could not be absorbed as he was positioned down in seniority. Due to the business.exigency , the Respondent/ 1 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 atKarur Branch from 30-08-1982 . 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 Karur branch . He was called for an interviewby a Committee appointedby Respondent/ Bank in this regard . But , they have not informed the result of interview and also with regard to appointment. But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee. From 30-08-1982 , the Petitioner. has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Karur 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

3725 GI /07-46 [PART II-SEC. 3 (ii )] 7802

THE GAZETTE OF INDIA: SEPTEMBER 22, 2007 /BHADRA 31 , 1929

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.

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore, the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent /Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedworkmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour .

6. Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) ofthe 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 falseto 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. 304 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 ?" 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 waitlisted as candidate No. 304 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 ofthose temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement, employees were categorised as A, B and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ( B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per Clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problemwas due 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 wai listed at 304 , 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.

7803 [भाग II-खंड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

Point No. 1 :

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been.called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court 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 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..

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 . M1 and the averments of MW1 and MW2 and their testimonies during the cross examination will clearly show how the banks,... as 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 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 10 persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex . W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are, strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with theeligible categories is not valid . Therefore , these persons who were engaged by the Respondent/ Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex. W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case : Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MWI is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex .M1 , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included inthe Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MW1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regardto 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 9. Onbehalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18(1) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars / guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all. Further , they have invoked the relevant provisions of Chapter 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 [PART II-SEC . 3 (ii)] 7804

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rulings reported in 1985 4 SCC 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex. M10 wait list has not beenprepared in accordance with principle ofseniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus, the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter 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 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 inain writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination 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 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 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 ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on 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 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 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 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 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 ofconciliation proceedings held during the year 1997- 98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or afterthe settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (00) of the I. D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which 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 [भाग II-खंड 3 (ii) ]

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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 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 .

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 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 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 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 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 10. But, as against this , the learned Senior Counsel for the Respondent/ Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3) of the I. D. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length 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 adjudication after examining the allegations as there is an [PART II-SEC..3 (ii) ] 7806

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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 .

Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court isexpected to decide the real nature of disputes between the parties and with that object in view , it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt. is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not ?But , I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has beenkept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 Union of India and Others Vs. K. V. Vijeeshwherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis 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 removedfrom the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are ofthe opinion that the Respondents did not 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 gobeyond the order of reference , if points 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 powerto 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 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 7807 [ भाग II-खंड 3 ( ii ) ]

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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 ad a nullity. " Therefore, learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies andtherefore, they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the rulings reported in AIR 1997 SCC3657 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 daily wage employees and have no right to the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ. (Supp ) 754 wherein the Rajasthan High Court has held that "Under Section 25G of the I.D. Act retrenchment procedure following principle of 'lastcome first go ' is not mandatory but only directory , on sufficient grounds shown , the employer is permittedto depart from the said principle retrenching seniors and retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence that his juniors were made permanent by the Respondent/ Bank. Anyhow, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer. for reinstatement in the services of Respondent/ Bank cannot be given to the Petitioner and therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that, evenin recent decision reported in 2006 4 SCC 1 Secretary, State ofKarnataka Vs. Uma Devi , the Supreme Court has heldthat "merely because a temporary employee or a casual wage worker is continued for a time beyond the term 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 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 DivisionBench, 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 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 hoctemporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad hoc/temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was. he appointed in pursuance of a notification calling for applications which means he had enteredby a back door; (c) he was not eligible and qualified for the post at the time of his appointment ; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . Thus , the Supreme Court set aside the orders 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 [PART II-SEC . 3 (ii)] 7808

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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 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 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:

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 original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh, wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation ofan employee upon the expiry of purported period 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 Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore . "

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

16. Relying on all these decision , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been

20. In view of my foregoing findings that the petitioner is a temporary employee and he is not entitled to [भाग II-खंड 3( ii ) ]

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भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

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 reliefas 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 : WWI Sri Nagarajan WW2 Sri V. S. Ekambaram Forthe Respondent : MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :

Ex. No. Date

Description

WI 01-08-88 Xerox copy of the paper publication in dailyThanthi 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 ofthe advertisement in The Hindu on daily wages based on Ex . W4.

W5 20-08-91 Xerox copy of the advertisement inThe 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 messengers 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 19-12-83 Xerox copy of the service certificate issued by Karur branch.

24-12-92

W10

Xerox copy of the service certificate issued by Karur branch.

W11 20-08-92 Xerox copy of the service certificate issued by Karur branch .

W12 02-08-96 Xerox copy of the service certificate issued by Karur branch.

W13 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 .

3725G1/07-47

Ex. No. Date

Description

W14 Nil Xerox copy ofthe Vol . III of Reference book on staffmatters upto 31-12-95 .

06-03-97

W15

Xerox copy ofthe call letter from Madurai zonal office for interview ofmessenger 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.

W1817-03-97 Xerox copy of the service particulars J.Velmurugan.

26-03-97

W19

Xerox copy of the letter advising selection ofpart time Menial-G. Pandi. 31-03-97

W20

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

W21 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the 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.

09-07-92

W24

Xerox copy ofthe minutes ofthe Bipartite meeting.

09-07-92

W25

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

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 circularabout appointment of temporary employees in subordinate cadre .

For the Respondent/Management :

Ex. No. Date

Description

MI 17-11-87 Xerox copy ofthe settlement .

M2

Xerox copy of the settlement. 16-07-88

M3

Хегоx copy of the settlement .

27-10-88

09-01-91 Xerox copy of the settlement .

M4

M5

Xerox copy of the settlement. 30-07-96

M6 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings .

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THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

Ex. No. Date

Description

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 Trichy Module.

M11 25-10-99 Xerox copy of the order passed in CMP Nos . 16289 & 16290/99 in W.A. No. 1893/99 .

नई दिल्ली, 28 अगस्त, 2007

का. आ. 2738.- 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 97/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । [सं. एल-12012/299/1998- आई आर ( बी-I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 28th August, 2007

S.O. 2738. -In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 97 / 2004) of the Central Government Industrial Tribunal -cum- Labour Court , Chennai as shown in the Annexure , in the Industrial Dispute between the management ofState Bank of India and their workmen , which was received by the Central Government on 28-8-2007.

[No. L - 12012/ 299/ 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. 97/2004 (Principal Labour Court CGID No. 40/99) [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 ofState Bank of India and their workmen]

BETWEEN

: I Party/Petitioner Sri S. K. Rajendran

AND

[PART II-SEC . 3 (ii)) The Assistant General : II Party/Management Manager, StateBank of India, Region-I Trichirapalli.

APPEARANCE

Forthe 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 /299 /98 - IR(B - I) dated 2-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 40/99 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. 97/2004.

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

"Whether the demand of the workman Shri S. K. Rajendran wait list No. 391 for restoring the wait list oftemporary messengers in the establishment ofState Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ? " 3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

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 Tiruchirapalli branch from 28-10-1985 . During 1985-86, 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 filedby State Bank Employees' Union in Writ Petition No. 542/87which 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 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 [भाग II-खंड 3 ( ii) ]

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भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

advertisements. The Petitioner also submitted his application in the prescribed format through Branch Manager of the Tiruchirapalli 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 28-10-1985 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . Whileworking on temporary basis in Tiruchirapalli branch, another advertisement by the Respondent/ Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally 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 to31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence , since according to the Respondent/ Bank, it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number ofdays worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal. Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act . The termination of the Petitioner is against the provisions of para 522 (4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Ba 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 himto work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

4. As against this, the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3) 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 waitlisted as candidate No. 391 in wait list 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 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 upto31-3-97 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 [PART II-SEC . 3 (ii)] THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

7812

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. 391 for restoring the wait list of temporarymessengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? "

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

PointNo. 1 :

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 391 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not applyto Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity ofPetitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list oftemporary employees and vacancies for 1995-96 has to be filledup against the wait list drawn for appointment of daily wages/ casual labour . Further , for circle of Chennai wait list ofdaily wages was not finalized and hence not published andthere is only one wait list for the appointment of temporary employees .After the expiry of wait list, the Petitioner has no claim for permanent absorption. Hence , for all these reasons , the Respondent prays to dismiss the claim with

costs.

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars ofthe Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis.After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Unionhad filed a Writ Petition before the Supreme 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 .

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 ofIndia . In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent/Bank imposed total ban for his future 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 .

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 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 [ भाग II- खंड 3( ii) ]

7813

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र.31 , 1929

has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched 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 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 given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 ofEx. M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of 'A, B and C' is quite opposed to the doctrine of ' last come-first go ' or ' first come-last go ' and therefore, the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex . 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 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 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. 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 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, asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further, the averment of MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt 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 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 notinconformity 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 [PART II -SEC. 3 (ii) ] 7814

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929 ،

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 behalfofthe Petitioner that though some of the Petitioners inthe connected I.Ds have not completed 240 days , since theRespondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management 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 findthemselves 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 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 hefore this Tribunal marking it as a confidential document. It is further contended on behalfofthe Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2(oo) ofthe I. D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which isstill in existence , the categorisation as such is not valid 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 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 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 7815 [ भाग II-खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 22 , 2007/भाद्र 31 , 1929

on all workmen of the establishment . Even in case of the first category , if the settlement was reached with a representativeunion of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contestingworkmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering . Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at 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 .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workmanwith wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent /Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt..is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be inade as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

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 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 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 will be binding on all workmen ofthe establishment, even those who belong to the minority union which had objected to the same. To that extent , it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But , in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 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

12. But, as against this on behalf of the Petitioner it iscontended that mere wording ofreference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that"mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot gobeyond the order of reference , ifpoints ofdifference are discernible from the material before it , it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the [PART II-SEC. 3 ( ii)] 7816

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

exact nature ofdispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient PaperMills Vs. Industrial Tribunal & Ors . wherein 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 is expected to decide the real nature of disputes between the parties andwith 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, fromthepleadings 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 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 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 .

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 ofthe opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel. The claim of the Respondents as contained in the W.P. was thus misconceived and therefore, the learned Single Judge and the Division Bench , whenit first decided the appeal were right in dismissing theWrit 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 inde feasible 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 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 reinstatenient 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 entered by a back door; (c) he was not eligible and qualified forthepost 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 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 iswhether a candidate whose name appears in the select listonthe basis of competitive examination acquires a right ofappointment in Govt. service in an existing or a future vacancy. " In that case , pruning of select list on reduction innumber ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision 7817 [ भाग IIII- खंड-खंड 3( ii) ]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

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 .

15. Learned Senior Advocate further argued that évenin recentdecision 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 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 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 ofan employee upon the expiry ofpurported periodofprobation would not arise . " Further , in CDJ 2006 SC 395 Municipal Council , Sujanpur Vs. Surinder Kumar , the Supreme Court has held that " it is not disputed that the appointment 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 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 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 daily wage employees and have no right to the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that "Under Section 25G of the I.D. Act retrenchment procedure following principle of 'lastcome first go ' is not mandatory but only directory, onsufficient grounds shown , the employer is permittedto depart from the said principle retrenching seniors and retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service, he has not established with any evidence that his juniors were made permanent by the Respondent/

3725 G1/07-48 [PART II -SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

7818

240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Courtprobably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him. Therefore , I find this point against the Petitioner .

Point No. 2 :

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 ofservice by that itself would not confer any legal right upon himto be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the 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 reliefas claimed by him. No costs .

21. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him, corrected andpronounced by me in the open Court on this daythe 31st January , 2007. )

K. JAYARAMAN , Presiding Officer

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 ofwait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

: WWI Sri S. K. Rajendran WW2 Sri V. S. Ekambaram

For the Respondent : MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked:

Description

Ex. No. Date

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation 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

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 inducemerits . 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.

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.

W6 15-03-97 Xerox copy ofthe circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

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 7819 [भाग II-खंड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

Date

Ex. No. Date

Ex. No.

Description

Description

W7 25-03-97

W25 31-03-97 Xerox copy of the appointment order to SriG. Pandi .

W26 Feb. 2005

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 pay slip of T. Sekar forthemonth of February, 2005 wait list No. 395 ofMadurai Circle .

W8 Nil

W27 13-02-95

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 Madurai Module Circular letter about engaging temporary employees from the panel of waitlist.

W9 23-04-86

W28 09-11-92

Xerox copy of the service certificate issued by Trichy branch .

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

W10 04-03-92 Xerox copy of the service certificate issued by Trichy branch .

W29 09-07-92 Xerox copy of the minutes of the Bipartite meeting.

W11 06-04-93 Xerox copy of the service certificate issued by Trichy branch .

09-07-92

W30

W12 03-11-93 Xerox copy of the service certificate issued by Melachinthamani 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 .

2

W13 02-05-94 Xerox copy of the service certificate issued by Trichy branch.

W31 07-02-06

W14 19-07-95 Xerox copy of the service certificate issued by Trichy branch .

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

W15 12-09-96

W32 31-12-85

Xerox copy of the service certificate issued by Trichy branch .

W16 26-11-97

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

Xerox copy of the service certificate issued by Trichy branch.

For the Respondent/Management :

W17 19-10-85 Xerox copy of the letter calling for interviewfrom Respondent/Bank.

Ex. No. Date

Description

W18 Nil

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 .

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

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

W19 Nil Xerox copyofthe Vol . III Reference book onstaffmatters upto 31-12-95 .

M5 30-07-96 Xerox copy of the settlement. 06-03-97

W20

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

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

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

W21 06-03-97

M8 15-05-98

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

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

W22 06-03-97

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

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

M10 Nil

W23 17-03-97

Xerox copy of the wait list of Trichy Module .

Xerox copy ofthe service particulars- J.Velmurugan.

M11 25-10-99

W24 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 & 16290/99 in W.A. No. 1893/99 .

7820

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

नई दिल्ली, 28 अगस्त, 2007

का. आ. 2739.-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 95/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था ।। [सं. एल-12012/642/1998- आई आर(बी- I ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 28th August, 2007

S.O. 2739.- In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 95/ 2004) of the Central Government Industrial Tribunal- cum- Labour Court, Chennai as shown in the Annexure, in the Industrial Dispute between the management of StateBank of India and their workmen , which was received by the Central Government on 28-8-2007 .

[No. L- 12012/642/ 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 . 95/2004 (Principal Labour Court CGID No. 306/99) [Inthematter 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 C. Kochadayan

: I Party/Petitioner

AND

[PART II-SEC. 3 (ii) ] Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 306/99 and issued notices to both parties. Both sides entered appearance and filed their claim statement and Counter Statement respectively . Afterthe constitution of this CGIT -cum- Labour Court, the said dispute has been transferred to this Tribunal foradjudication and this Tribunal has numbered it as I. D. No. 95/2004.

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

"Whether the demand of the workman Shri C. Kochadayan , 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 arebriefly as follows :-

: II Party/Management

The Assistant General Manager, State Bank of India , Z.O. Madurai.

APPEARANCE

:

For the Petitioner

SriV. S. Ekambaram, Authorised Representative For the Management : M/s . K. Veeramani, Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/642/98 - IR(B- I ) dated 3-5-1999 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 inStateBank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis atPeriakulam branch from 22-5-1982 . The Petitioner was orally informed that his services were no more required. The non- employment of the Petitioner and others became subject matter before 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 ofthe Periakulam branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But, theyhave 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 22-5-1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Periakulam 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 [ भाग II- खंड 3 (ii) ]

7821

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

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, the Petitioner raised a dispute with regard to his non- employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence, since according to the Respondent/ Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number ofdays worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act . The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment 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 adjudicationby 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 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 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) 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. 297 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 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 of492 wait listed candidates, 219 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 ofPermanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has 7822

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

[PART II -SEC . 3 ( ii) ]

and consequential appointment thereupon as temporary messenger is justified ? "

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

Point No. 1 :

no jurisdiction to entertain such plea. It is not correct to saythatdocuments and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment ofdaily wages/ casual labour . Further , for circle of Chennai wait list ofdaily 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 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 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 hy the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable 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 :-

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18 (1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has, not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars /guidelines issued by the Respondent/Bank to the effect that temporary employees at branches /offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all. Further, they have invoked the relevant provisions of Chapter V- A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much (1) "Whether the demand of the Petitioner in Wait List No. 297 for restoring the wait list of temporary messengers in the Respondent/Bank [ भाग II-खंड 3 (ii) ]

7823

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 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 and IC 2248 CentralBank ofIndia 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 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 of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . Ml and the averments ofMW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has givena raw deal to the 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 :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 , copy ofwhich is marked as Ex. W8 . Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/ Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter ofarriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M10 inthis case. Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers. Even MWI is unable to say as to when the wait- list Ex . M10 was prepared ,but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . M1 , M3 and M4 respectively. But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to 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 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 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 classandtheir 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 ofthe Petitioner thatas 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 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 in The Hindu dated 1-8-88. Furthermore , wait list under Ex . M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, it is clear that Ex . M10 has been prepared in violation ofinstructions and ceased to have the credibility attached to the wait list . Above all , Ex. 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 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(00) ofthe I.D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though [PART II-SEC . 3(ii) ] 7824

THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

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 ofthe Petitioners inthe connected I.Ds have not completed 240 days , since theRespondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation wherein the Supreme Court has held that " the expression ' actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc." . It is further argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group 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.

thePetitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 19854 SCC 201 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 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 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 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 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 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 , 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 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

10. But, as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3) of the I. D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive. Further , they have concealed the material facts that the Petitioner was wait listed as per length 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 7825 भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

[भाग II-खंड 3 (ii) ]

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 contendedthatthough the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? " The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated inservice with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability ofa reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam whereinthe Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability ofa reference . Even though the Tribunal cannot gobeyond the order of reference , ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings 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 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 andthe settlements were bank level settlements and operate throughout the country . Further, he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence ofplea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same . To that extent, it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority 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 représentative 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

3725 GI /07--49 7826

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929,

[PART II-SEC . 3 ( ii)] 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, itshould consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the 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 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 thebasis ofcompetitive examination acquires a right ofappointment in Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number ofvacancies was made in view of the inspending 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 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 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 conte 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 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 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) 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 abackdoor; ( c) he was not eligible and qualified for the post at the time ofhis appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of an ad hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumptionmay bejustified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must 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 7827

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

[ भाग II-खंड 3 (ii ) ]

:

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 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 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 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 . 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 .

wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not madeby following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employment with open eyes . It may be true that he is, not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible. " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee..................It has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules :" Further , in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh, wherein the Supreme Court has held that " regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry of purported period ofprobation would not arise . " Further, in CDJ 2006 SC 395 Municipal Council , Sujanpur Vs. Surinder Kumar, the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. " Further, in 2006 2 LLN 89 Madhya Pradesh 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 . " 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 7828

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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 entitledto dispute the same and they are estopped from doing so . Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned inthe settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

[PART II-SEC . 3 ( ii)] Point No. 2 :

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

20. In view of my foregoing findings that the petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him. No costs .

21. Thus , the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January , 2007. )

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Forthe Petitioner

17. I find much force in the contention of the learned counsel for the Respondent. Though in the Claim Statement , the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation , at the time ofreference , they have not questioned the settlement nor the number allotted to each individual in the wait list : Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account of mala fide, misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent/Bank.

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

:WW1 Sri C. Kochadaiyan WW2 Sri V. S. Ekambaram For the Respondent : MWI Sri C. Mariappan MW2 Sri M. Perumal

Documents Marked:

Ex. No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation 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 ofZonal Office, Chennai about filling up of vacancies of messengers 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 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.

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 ofthe service particulars of Petitioner issued by Periyakulam branch .

[भाग II-खंड 3(ii) ]

7829

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

Ex. No. Date

Description W10 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 .

W11 Nil Xerox copy of the Reference book on staff matters Vol . III consolidated upto 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 ofmessenger post-K. Subburaj .

W14 06-03-97 Xerox copy ofthe call letter from Madurai zonaloffice 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 .

31-03-97

W17

Xerox copy of the appointment orderto SriG. Pandi .

Feb. 2005

W18

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

13-02-95

W19

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

W20 09-11-92 Xerox copy ofthe Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W21 09-07-92 Xerox copy of the minutes ofthe Bipartite meeting.

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 .

W23 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants.

W24 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

For the Respondent/Management : /

Date

Ex. No.

Description

M1

Xerox copy ofthe settlement. 17-11-87

M2

Xerox copy of the settlement. 16-07-88

M3

Xeгox copy of the settlement. 27-10-88

M4

Xerox copy of the settlement. 09-01-91

M5

Xerox copy of the settlement .

30-07-96

M6 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings.

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

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

M9 10-07-99 Xerox copy ofthe order ofSupreme Court in SLP No. 3082/99 .

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

25-10-99

M11

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

नई दिल्ली, 28 अगस्त, 2007

का. आ. 2740. 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, चैन्नई के पंचाट ( संदर्भ संख्या 90/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-08-2007 को प्राप्त हुआ था । [सं. एल -12012/533/1998- आई आर ( बी- I ) ] अजय कुमार, डेस्क अधिकारी New Delhi, the 28th August, 2007.

S.O. 2740.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 90/ 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 28-08-2007.

[No. L- 12012/533 / 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 7830

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC. 3( ii)] INDUSTRIAL DISPUTE NO . 90/2004

(Principal Labour Court CGID No. 267/99)

[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 ofState Bank of India and their workmen]

BETWEEN

: I Party/Petitioner

Sri S. Veerapandian

AND

The Assistant General : II.Party/Management

Manager,

State Bank of India,

ZonalOffice, Madurai.

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram,

Authorised Representative

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

AWARD

The Central Government, Ministry of Labour vide OrderNo. L- 12012/533 /98 - IR(B - I) dated 22-04-1999 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. 267/99 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. 90/2004 .

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

"Whether the demand of the workman Shri S. Veerapandian, wait list No. 403 for restoring the waitlist oftemporary messengers in the establishment ofStateBank ofIndia 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 : -

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 Karaikudi 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 15-6-1984, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Karaikudi 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 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,ence , 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 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 atKaraikudi branch from 15-6-1984 . 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 ' Unjon in Writ Petition No. 542/87 which was taken up by the Supreme Court. The [भाग II-खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

7831 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 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 of492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 403, 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 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 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 .

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 Petitider 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 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. 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. 403 in wait list ofZonal Office, Chennai . So far 219 wait listed temporary candidates, out of 492 wait listed temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment, Such ofthose temporary employees who were appointed were engaged 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

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.

[PART II- SEC . 3 (ii) ] THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7832

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 listedworkmen with ulterior motive. The Respondent/Bank hasbeen arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour.

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18( 1 ) of the Act and not under Section 18 (3 ) of the Act. As per recruitment rules ofthe Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner. Hence , the Petitioner prays that an award may be passed in his favour.

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

(i) "Whether the demand of the Petitioner in Wait List No. 403 for restoring the wait list of temporarymessengers in the Respondent/Bank and consequential appointment thereupon as temporarymessenger is justified ?"

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

Point No. 1 :

:

9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank 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 andthe Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary empyees 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 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 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 ofthe 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 ofthe 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 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 ofthe 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 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 andtherefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the 7833 [भाग II-खंड 3 (ii ) ]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

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 of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case. Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MWI is unable to say as to when the wait list Ex . M10 was prepared , but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which aremarked as Ex . MI , M3 and M4 respectively . But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included 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 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 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 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 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 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 inWMPNo. 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 . 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 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 be en 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) 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 . TheRespondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also forthe averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ 3725 G1/07-50 7834

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

[PART II-SEC . 3 ( ii) ]

find themselves stranded in life midstream. They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour.

Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy ofminutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central) , Hyderabad, it is neither a 18 (3 ) settlement nor 12 (3 ) settlement as claimed by the Respondent/Bank which says onlywith regard to 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 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 ofSection 25 and therefore , they are deemed to be in continuous service ofthe Respondent/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 ofAmericancan 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 inthe 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 theirapplication 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

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 aremadewithulterior motive. Further, they have concealed the material facts that the Petitioner was wait listed as per length ofhis engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directlyor 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 willbebinding on all workmen of the establishment, even those who belong to the minority union which had objected to the same . To that extent , it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional [भाग II-खंड 3 ( ii) ] `

7835

भारत का राजपत्र : सितम्बर 22, 2007 / भाद्र 31 , 1929

cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 1 LLJ 308 K.C.P. Ltd. Vs. Presiding Officer and Others wherein the Supreme Court has held that " 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 .

inthe matter oftenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability ofa reference . Even though the Tribunal cannot gobeyond the order of reference , if points of difference are discernible from the material before it , it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient PaperMills Vs. Industrial Tribunal & Ors . wherein 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 retrenchmerit is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bankand there fore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further, inthis 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 is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive

:

[PART II-SEC. 3 ( ii ) ] 7836

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

(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 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 inAIR 1997 SCC3657 Himanshu Kumar Vidyarthi &Ors . Vs. State of Bihar and Ors . wherein the Supreme Court has heldthat "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 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 19963 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 of appointment in Govt . service in an existing or a future vacancy. In that case, pruning of select list on reduction in number ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and. consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported 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, 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 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 7837 [ भाग II- खंड 3( ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

0 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.

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 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 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 ofwait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 Secretary, State of Karnataka Vs. Uma Devi, the Supreme Court has held that"merely because a temporary employee or a casual wage worker is continued for a time beyond the term ofhis appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength ofsuch continuance , if the original appointment was not madeby following a due process ofselection as envisaged by relevant rules. It is not open to the Court to prevent regular recruitment at the instance oftemporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It maybe true that he is not in a positionto bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so, it will be creating another mode ofpublic appointment which is not permissible. " Further , the Supreme Court while laying down the law , has clearly held that "unless the appointment is in terms 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

17. I find much force in the contention of the learned counsel for theRespondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard topreparationof wait list and also settlements entered into 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 7838

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 mustbe considered on its own merit and the changes. brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation , priyatisation 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 , correctedandpronounced by me in the open Court on this day the31st January, 2007.)

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Forthe Petitioner : WWI Sri S. Veerapandian

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 of Ex .M1 .

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

Description

W.3 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 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 03-06-88 Xerox copy of the service particulars of Petitioner issued by Karaikudi branch .

W10 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 .

W11 Nil Xerox copy of the Reference book on staffmatters Vol . III consolidated upto 31-12-95.

W12 06-03-97 Xerox copy of the 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 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 ofMadurai Circle .

W19 13-02-95 Xerox copy of the Madurai Module Circularletter about engaging temporary employees from the panel ofwait list .

[ भाग II-खंड 3( ii ) ]

7839

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

Ex. No. Date

Description

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 oftheBipartite meeting.

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 .

W23 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants.

W24 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre.

For the Respondent/Management :

Date

Ex. No.

Description

M1

Xerox copy of the settlement. 17-11-87

Xerox copy of the settlement.

M2 16-07-88.

M3

Xerox copy of the settlement. 27-10-88

M4

Xerox copy of the settlement .

09-01-91

M5

Xerox copy of the settlement. 30-07-96

M6 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings .

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

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

M9 10-07-99 Xeгox copy ofthe order ofSupreme Court in SLP No. 3082/99 .

M10 Nil Xerox copy of the wait list ofMadurai 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, 28 अगस्त, 2007

का. आ. 2741.- औद्योगिक विवाद अधिनियम, 1947 ( 1947 क़ा 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 100/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । [सं. एल-12012/304/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 28th August, 2007 S.O. 2741.- In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 100/ 2004) of the Central Government Industrial Tribunal- cum- Labour Court, Chennai as shown in the Annexure, in the IndustrialDispute between the management of StateBank of India and their workmen, which was received by the CentralGovernment on 28-8-2007.

[No. L- 12012/304/ 1998 - IR (B- 1) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K. Jayaraman , Presiding Officer

INDUSTRIAL DISPUTE NO . 100/2004 (Principal Labour Court CGID No. 43/99) [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 V. Lakshmanan

:I Party/Petitioner

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. V. SundarAnandan, Advocates :

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012/304/98 - IR (B - I) dated 02-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No.43/99 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. 100/2004.

7840

[PART II-SEC. 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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

"Whether the demand of the workman Shri V. Lakshmanan, wait list No. 651 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 :-

grievance of the Petitioner , he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence, since according to the Respondent/ Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number ofdays worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G and 25H of the I. D. Act. The termination of the Petitioner is against the provisions of para 522(4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to thetemporaryworkmen which amounts to violation of relevant provisions of circular . The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice. The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence, the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Section 18 (1 ) and 18(3) of I. D. Act in lieu ofprovisions of law, retrenchment and implemented by Respondent/Bank 、 The claim of the Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and 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 The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre inState Bank of India and he was given appointment as messenger after an interview and medical examination. He was appointed on temporary basis atKailasapuram branch from 12-9-1988 . The Petitioner was orally informed that his services were no more required. The non- employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank, in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India andAll India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporaryworkmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Kailasapuram branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But, they have not informedthe 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 12-9-1988 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Kailasapuram 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 7841

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

[ भाग II-खंड 3(ii ) ]

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 .

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 ofthe Respondent/Bank , recruitment of class IV staff in the.Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour..

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

(i) "Whether the demand of the Petitioner in Wait List No. 651 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? "

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

PointNo. 1:

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe 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. 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. 651 in waitlist of ZonalOffice, 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 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 651 , 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

3725 G1/07-51 7842

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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

9. Onbehalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case, the Petitioner is not bound by settlement under Section 18(1) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars /guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all. Further , they have invoked the relevant provisions of Chapter 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 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 ofthe Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex . M1 and the averments of MW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking his future 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 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 Staff matters , copy ofwhich is marked as Ex . W8 . Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex. W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each modulę 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 on2-5-92 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 per Bipartite Settlement while the 1988 settlement dealt with dailywager in Class IV category who were paid wages 7843 [ भाग II-खंड 3( ii) ]

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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 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 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 ofconciliation proceedings held during the year 1997- 98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/ Bank has alleged that these Petitioners were engaged in leave vacancy, they have not 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 employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years

with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex . M10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it . Though clause 2( e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination ofthe Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the 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 , they do not have any bearing in the case of the Petitioner. Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex. M1 to M5. Above all , though the Respondent/Bank has referred to voluntary retirement scheme , in the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's 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 [PART II-SEC. 3 ( ii)] 7844

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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.

10. But , as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised. Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the I. D. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 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 andthe 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 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 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 contestingworkmen also. " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at bythe free will 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 appropriatę 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 [भाग II-खंड 3 ( ii ) ]

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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 expected to decide the real näture 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 or 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 .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent /Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

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 .

12. But , as against this on behalf of the Petitioner it is contended that mere wording ofreference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot gobeyond 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 Orient PaperMills 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 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

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time ofwait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 Union of India and Others Vs. K. V. Vijeesh wherein the Supreme Court has 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 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 withthe expiry of the panel . The claim of the Respondents 7846

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[PART II-SEC . 3 ( ii) ]

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 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 thathisjuniors 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 ..

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 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 backdoor; (c) he was not eligible and qualified forthe post at the time ofhis appointment; ( d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover, from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other. Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held 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

15. Learned Senior Advocate further argued that evenin recent 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 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 7847 [भाग II-खंड 3 ( ii) ]

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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 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 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 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 .

Point No. 2 :

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 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 ofthe Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules .Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. " Further , in 2006 2 LLN 89 Madhya Pradesh State Agro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right uponhim tobe regularised in service ." The Supreme Court also held that " the changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore . "

The next 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

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 .

7848

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

21. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open Court on this day the 31st January, 2007.)

K. JAYARAMAN , Presiding Officer Witnesses Examined :

WW1 Sri V. Lakshmanan Forthe Petitioner :

WW2 Sri V. S. Ekambaram For the Respondent : MWI Sri C. Mariappan

MW2 Sri T.L. Selvaraj

Documents Marked :

Date

Ex. No.

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation 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 instruction in Reference book on staff about casuals not to be engaged at office/branches to domessengerial work .

W9 05-04-89 Xerox copy of the service certificate issued by Regional Engg . College ,Trichy branch.

05-08-89

W10

Xerox copy of the service certificate issued by Trichy New BHEL branch.

W11 26-07-93 Xerox copy of the service certificate issued by Tuvakudi branch.

W12 26-07-93 Xerox copy of the service certificate issued by Tuvakudi branch .

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

Ex. No.

Description

02-08-93

W13

Xerox copy of the service certificate issued by Regional Engg . College , Trichy branch.

20-06-95

W14

Xerox copy of the service certificate issued by Trichy Kamarajapuram branch.

27-10-95

W15

Xerox copy of the service certificate issued by Tuvakudi branch.

W16 25-11-97 Xerox copy of the service certificate issued by Kailasapuram branch.

W17 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 .

W18 Nil Xerox copy of Vol. III of Reference book on staff matters upto 31-12-95. 06-03-97

W19

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

06-03-97

W20

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

06-03-97

W21

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

W22 17-03-97

J. Velmurugan. Xerox copy of the service particulars---

W23 26-03-97 Xerox copy of the letter advising selection ofpart time MenialG. Pandi.

W24 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

Feb. 2005

W25

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

W26 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of waitlist.

W27 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W28 09-07-92 Xerox copy of the minutes of the Bipartitemeeting.

09-07-92

W29

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 .

7849

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र. 31 , 1929

[भाग II-खंड 3 ( ii ) ]

ANNEXURE

Description

Date

Ex. No.

W30 07-02-06

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

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

Wednesday, the 3 1st January , 2007

PRESENT

W31 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

K. Jayaraman, Presiding Officer INDUSTRIAL DISPUTE No. 276/2004 For the Respondent/Management :

(Principal Labour Court CGID No. 232/99) Description

Ex. No. Date

M1

Xerox copy of the settlement .

17-11-87

M2

Xerox copy of the settlement.

16-07-88

[Inthe 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] M3 27-10-88 Xerox copy of the settlement.

BETWEEN

M4

Xerox copy of the settlement.

09-01-91

: I Party/Petitioner

Sri S. Gunasekaran

M5

Xerox copy of the settlement .

30-07-96

AND

: II Party/Management 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.

The Assistant General Manager, StateBank of India , ZonalOffice , Chennai.

APPEARANCE

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 ofSupreme Court in SLP No. 3082/99 .

Forthe Petitioner : Sri V. S. Ekambaram, Authorised Representative M10 Nil Xerox copy of the wait list ofTrichy Module .

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

AWARD

M11 25-10-99 Xerox copy of the order passed in CMP No. 16289 & 16290/99 in W.A. No. 1893/99.

नई दिल्ली, 28 अगस्त, 2007

The Central Government , Ministry of Labour vide Order No. L- 12012/ 513/98 - 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 thedispute on its file as CGID No. 232/99 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. 276/2004.

का. आ. 2742.- 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 276/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/513/1998- आई आर (बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 28th August, 2007

"Whether the demand of the workman Shri S. Gunasekaran , wait list No. 512 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. 2742. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 276/ 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 28-8-2007.

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 [No. L- 12012/513 / 1998- IR (B- I) ] AJAY KUMAR, Desk Officer

3725 G1 /07-52 7850

[PART II -SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

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 to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporaryworkmen which amounts to violation 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 .

as messenger after an interview and medical examination . He was appointed on temporary basis atT. Nagar branch from 16-7-1981 . 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 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 T. Nagar 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 16-7-1981 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in T. Nagar branch , another advertisement by the Respondent/ Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence , the Petitioner raised a dispute with regard to his non- employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sentto this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt .to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand 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

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 ofregular appointment/absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Section. 18 ( 1 ) and 18(3 ) ofI. D. Act in lieu of provisions of law, retrenchment and implementedby Respondent/Bank , The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and. could not be absorbed as he was positioned down in seniority . Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards , Such of those employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87 , 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. 642 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 [ भाग II-खंड 3 ( ii) ]

7851

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

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 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. 512 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 :

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 744 wait listed candidates, 357 temporary employees were appointed and since the Petitioner was wait listedat 642, 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 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 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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having- been selected and wait listed in terms ofthe relevant guidelines/ circulars ofthe Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (civil) 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 [PART II-SEC. 3 (ii ) ] THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

7852

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 .

' 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 based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex. M1 , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included inthe Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except his bald statement. Further , according to MW1 wait list under Ex. M10 was prepared 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 withdailywager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 ofConstitution of India . Further, the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bankby combining equals with unequals . It is further contended on behalfof 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 9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18(1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars /guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter 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 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 unternable . 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 rawdeal to the Petitioner from the beginning linking his future withthe settlements . Further, Clause 1 ofEx .M1 deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of 7853

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

[ भाग II- खंड 3 ( ii ) ]

refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination ofthe Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy ofminutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad , it is neither a 18 (3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says onlywith 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 , 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 ofSection 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 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 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 . Itis further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2(oo) ofthe I. D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which 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 ofappointment or posting within the prescribed period, he will be deemed to have 7854

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

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

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 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 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 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 .

10. But , as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case. The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service. Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised. Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3 ) of the I. D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive. Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation werebona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by anyunion and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence 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

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workmanwith wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?' The 7855 [भाग II-खंड 3( ii ) ]

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

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 is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

12. But, as against this on behalf of the Petitioner it iscontendedthat mere wording of reference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollamwherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot gobeyond the order of reference , if points of difference are discernible from the material before it , it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits ." Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient PaperMills Vs. Industrial Tribunal & Ors , wherein the Madhya Pradesh High Court has held that " the Tribunal 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 isexpected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , fromthe pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to theback wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

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 of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory ." He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services 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 Divislon Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide onthe part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry ofthe date namely 31-3-1997 , the Petitioner cannot [PART II-SEC . 3( ii )] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

7856

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 and Ors . Vs. State of Bihar and Ors. wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only dailywage employees and have no right to the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of 'last come---- first go' is not mandatory but only directory, on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and 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 .

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 heldthat "merely because a temporary employee or a casual wageworker is continued for a time beyond the term ofhis appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not madeby following a due process ofselection 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 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 for the post at the time ofhis appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption maybe justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of oneunit may not be the same as of the other. Just because 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 a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable. Thus , the Supreme Court set aside the orders oflower Courts . He further relied on the decision reported in 1997 II SCC 1 Ashwani Kumar and Others Vs. State of Bihar and Others wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , ifthe candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned . But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees, therefore, remained a nullity. " Therefore , learned counsel for the Respondent contended that these [भाग II-खंड 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. 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 worwould not arise ." Further, in CDJ 2006 SC 395 Municipal Council , Sujanpur Vs. Surinder Kumar , the Supreme Court has held that " it is not disputed that the appointment ofthe Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be . void in law. " Further , in 2006 2 LLN 89 Madhya Pradesh State Agro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this Court probably having regard 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 . "

7857

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

topreparation of wait list and also settlements entered into between the Respondent/Bank and Federation, at the time of reference, they have not questioned the settlement nor the number allotted to each individual in the wait list. Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account of mala fide, misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent/Bank.

18. Further , the representative for the Petitioner contended that in a similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence, the Petitioners are entitled for the same relief.

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought 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 ?

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 reliefas claimed by him. No costs .

21. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this daythe 31st January, 2007.)

K. JAYARAMAN, Presiding Officer Witnesses Examined :

For the Petitioner

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements, the Petitioners cannot now question either thepreparation ofwait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner .

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard 3725 G1 /07-53

: WW1 Sri S. Gunasekaran WW2 Sri V. S. Ekambaram For the Respondent : MW1 Sri C. Mariappan MW2 Sri C. Ramalingam 7858

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

Documents Marked:

Exo. Date

Description

W1. 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 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 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 Zonai 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.

Nil

W8

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

W9 11-02-82 Xerox copy of the service certificate issued by T. Nagar branch .

W10 . 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 .

W11 Nil Xerox copy of the Reference book on staff matters Vol. III consolidated upto 31-12-95 .

W12 06-03-97 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.

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

Description

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 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

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 ofthe Bipartite meeting.

09-07-92

W22

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

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 :

Date

Ex. No.

Description

M1

Xerox copy of the settlement .

17-11-87

M2

Xerox copy of the settlement .

16-07-88

M3

Xerox copy of the settlement .

27-10-88

M4

Xerox copy of the settlement. 09-01-91

M5

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 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 Chennai Module.

25-10-99

M11

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

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

[भाग II- खंड 3 ( ii ) ]

नई दिल्ली, 28 अगस्त, 2007

का. आ. 2743. 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 277/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । [सं. एल-12012/569/1998- आई आर ( बी- I ) ]

अजय कुमार , डेस्क अधिकारी New Delhi , the 28th August, 2007

S. O. 2743. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 277/ 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 28-8-2007 .

[No. L- 12012/569/ 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. 277/2004 (Principal Labour Court CGID No. 233/99) [In the matter of the dispute for adjudication under clause (d) of Sub- section ( 1 ) and Sub - section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947) , between the Management of State Bank of India and their workmen]

BETWEEN

: I Party/Petitioner Sri A. Periayanagam ,

AND

The Assistant General

7859

AWARD

The Central Government , Ministry of Labour vide OrderNo. L- 12012 /569 /98 - IR(B - I) dated 26-3-1999 has referred this dispute earlier to the Tamil Nadu Principal LabourCourt, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 233/99 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. 277/2004.

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

"Whether the demand of the workman Shri A. Perianayagam , wait list No. 246 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: --

: II Party/Management

Manager,

State Bank of India, Region-I , Trichirapalli

APPEARANCE

:

For the Petitioner

Sri V. S. Ekambaram , Authorised Representative For the Management : Mr. F.B. Benjamin George, 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 Palayamkottai branch from 13-4-1982 . 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 Palayamkottai 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 orallytojoin at the branch where he initially worked as a class IV employee . From 13-4-1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also .

[PART II-SEC. 3 ( ii) ] 7860

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

While working on temporary basis in Palayamkottai branch, another advertisement by the Respondent/ Bankwas made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non- employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence , since according to the Respondent/ Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number ofdays worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G and 25H of the I. D. Act. The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation 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 amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Section 18 ( 1 ) and 18 (3 ) of I. D. Act.in lieu ofprovisions of

law, retrenchment and implemented by Respondent/Bank. The claim ofthe Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts thathe was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and whentheir case was 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. 246 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 of36 calendar months and under category (C) the temporary employees whohave completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block 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 pernianent 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 246 , 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 7861

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

[भाग II-खंड 3 (ii) ]

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

(i) "Whether the demand of the Petitioner in Wait List No. 246 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 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 contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines /circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (civil) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . 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 retrerichment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post. He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedworkmen with ulterior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour .

9. Onbehalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case, the Petitioner is not bound by settlement under Section 18(1) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/offices are not allowed to be in service 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.

[PART II-SEC . 3 (ii ) ] 7862

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included inthe Madras circle since the High Court order is there , but he has not produced any document in support 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 and W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are notjustified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by 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 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 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 ofconciliation proceedings held during the year 1997- 98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy, they have not 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 Central Bank 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 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 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 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 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 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 aremarked as Ex. M1 , M3 and M4 respectively.

7863

भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

[भाग II-खंड 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 in the connected I.Ds have not coinpleted 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 hamıner , 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 of40 to 50 years and for no fault of theirs , they findthemselves stranded in life midstream. They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour .

10. But , as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised. Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the I. D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business appointment was in leave vacancy . Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2(oo) ofthe I. D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex . M10 wait list has not been prepared in accordance with principle 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 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 MWI . Therefore, the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad, it is neither a 18 (3 ) settlement nor 12 (3 ) settlement as claimed by the Respondent/Bank which says 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 , 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 [PART II-SEC . 3 ( ii )] 7864

THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 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 .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt. is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

12. But, as against this on behalf of the Petitioner it is contended that mere wording ofreference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary , Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference , 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 OrientPaperMills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that " the Tribunal 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 unionwill be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same . To that extent , it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.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 contestingworkmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering 7865 भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

[ भाग II-खंड 3 (ii) ]

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 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 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 dismissirig 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 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 forthe post at the time ofhis appointment ; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of 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 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time ofwait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 Union of India and Others Vs. K. V. Vijeesh wherein the Supreme Court has 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 innumber ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removedfrom the select list is not arbitrary and

3725 G1 /07-54 7866

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

[PART II-SEC . 3 ( ii) ] 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 cannotbe a mechanical act but a judicious one. From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 II SCC 1 Ashwani Kumar and Others Vs. State of Bihar and Others wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity." Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption in the Respondent/Bank. Further, he relied on the rulings reported 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 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 recentdecision reported in 2006 4 SCC 1 Secretary , State of Karnataka Vs. Uma Devi , the Supreme Court has heldthat"merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not 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 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 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 Industrics 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 भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

[भाग II-खंड 3 (ii ) ]

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 decisioris , 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 estoppedfrom doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation ofwait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

7867 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 reliefas claimed by him . No costs .

21.. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open Court on this daythe 3 Ist January , 2007. )

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Forthe Petitioner : WW1 Sri Periyananagam WW2 Sri V. S. Ekambaram For the Respondent : MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :

Ex . No. Date

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 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 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 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 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

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

7868

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

Date

Ex. No.

Description

23-11-94

W9

Xerox copy of the service certificate issued by Panruti branch .

W10 02-07-98 Xerox copy of the service certificate issued by Palayamkottai branch.

Nil

W11

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 the Reference book on staff matters Vol . III consolidated 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 .

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 .

17-03-97

W16

Xerox copy of the service particulars- J.Velmurugan.

W1726-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

31-03-97

W18

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 .

W20 13-02-95 Xerox copy of the Madurai Module Circularletter about engaging temporary employees from the panel of wait list.

W21 09-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

09-07-92

W22

Xerox copy of the minutes of the Bipartitemeeting .

09-07-92

W23

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 .

31-12-85

W25

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

[PART II-SEC. 3 ( ii) ] For the Respondent/Management :

Ex. No. Date

Description

M1

Xerox copy of the settlement. 17-11-87

M2

Xerox copy of the settlement .

16-07-88

M3

Xerox copy of the settlement .

27-10-88

M4

Хекох copy of the settlement. 09-01-91

M5

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 Хегох 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 Trichy Module.

25-10-99

M11

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

नई दिल्ली, 28 अगस्त, 2007

का. आ. 2744.- 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 282/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । [सं. एल-12012/629/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 28th August, 2007

S.O. 2744. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 282/ 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 28-8-2007 .

[No. L- 12012/629/ 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 7869 [भाग II- खंड 3( ii ) ]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

INDUSTRIAL DISPUTE No. 282/2004

(Principal Labour Court CGID No. 295/99)

[ 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 G. Pandian

: I Party/Petitioner

AND

TheAssistant General : II Party/Management

Manager,

State Bank of India , Zonal Office,

Chennai

APPEARANCE

: Forthe Petitioner

Sri V. S. Ekambaram ,

Authorised Representative

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

Advocates

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012/ 629 /98 - IR(B -I) dated 03-05-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 295/99 and issued notices to both parties. Both sides entered appearance and filed their Claim Statement and Counter Statement respectively. Afterthe constitution of this CGIT- cum- Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as 1. D. No. 282/2004.

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

"Whether the demand of the workman Shri G .. Pandian, wait list No. 599 for restoring the wait list of temporary messengers in the establishment ofState Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ? "

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

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 C.I.T. Nagar 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 24-11-1980 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in C.I.T. Nagar 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 disputę with regard to his non -employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent /Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number 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 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 C.I.T. Nagar branch from 24-11-1980. 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. 542/87 which was taken up by the Supreme Court . The 7870

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 .

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 waitlist 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 599, he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment 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 .

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 forpermanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was waitlisted as candidate No. 599 in waitlist of Zonal Office , Chennai . So far 357 wait listed temporary candidates , out of 744 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose. When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement, employees were 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

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 [ भाग II-खंड 3 ( ii) ]

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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 .

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 ofthe Respondent/Bank, recruitment of class IV staff in the Respondent /Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank . Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence, the Petitioner prays that an award may be passed in his favour.

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

( i) "Whether the demand of the Petitioner in Wait List No. 599 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 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 anopportunity to work in the bank after 31-3-1997

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 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 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 . M1 and the averments ofMWI and MW2 and their testimonies during the cross examination will clearly show how the bank has given a raw dealto the Petitioner from the beginning linking hisfuture with the settlements . Further , Clause 1 of Ex . Ml deals with categorization of retrenched temporary employees into 'A, B and C ' , but this categorization of ' A, B 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 [PART II-SEC. 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7872

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 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 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) 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 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 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 .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 engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types ofwaiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW1 is unable to say as to when the wait list Ex. M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . M1 , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non - inclusion except his bald statement. Further, according to MWI wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who 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 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 ofthe Petitioner that as per deposition of MWI wait list under Ex . М10 comprises of both messengerial and n-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 [भाग II-खंड 3( ii) ]

7873 भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

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.

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 ofin 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 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 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 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

10. But, as against this, the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner inthis case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the 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 ailegation 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 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 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 3725 G1/07-55 7874

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

individual employee or a minority union from scuttlingthe 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. PresidingOfficer and Others wherein the Supreme Court hasheld 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 categoryhas 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 representativeunion of which the contesting workmenwere members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at bythe free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation inwhich the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the -same.

12. But, as against this on behalf ofthe Petitioner it iscontended that mere wording ofreference is not decisive inthe matter oftenability ofa reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary , Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollamwherein the Kerala High Court has held that "mere wording of reference is not decisivé in the matter of tenability ofa reference. Even though the Tribunal cannot gobeyond 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 Orient PaperMills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court bas 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 inExpress Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . TheLabour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference, it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings 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 .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent /Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt. is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as allegedby 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 [भाग II-खंड 3 ( ii) ]

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भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

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 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 ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that "by its letter dated 7-2-87 the bank informed the Respondents that 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 ofthe opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus misconceived and therefore, the learned Single Judge and the Division Bench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists" and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances, after the expiry 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 forthe 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 ofan ad hoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of oneunit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but 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, 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 in AIR 1997 SCC 3657 Himanshu Kumar Vidyarthi [PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA: SEPTEMBER 22, 2007/BHADRA 31 , 1929

7876

&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, 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.

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 sanctioned post. Being a ' State' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules .Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law." Further , in 2006 2 LLN 89 Madhya Pradesh StateAgro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right uponhim to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions 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 ofwait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

17. I findmuch 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 15. Learned Senior Advocate further argued that even in recent decision reported in 20064 SCC 1 Secretary, State of Karnataka Vs. Uma Devi , the Supreme Court has 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 of his employment . He accepts the employment with open eyes . It may be true that he is not in a positionto bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible. " Further , the Supreme Court while laying down the law, has clearly held that "unless the appointment is in terms 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 [ भाग II-खंड 3 ( ii ) ]

7877

भारत का राजपत्र : सितम्बर 22 , 2007/ भाद्र 31 , 1929

Ex. No. Date

Description

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank forimplementation 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 .

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 .

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.

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 .

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 regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner.

W9 18-08-88 Xerox copy of the service certificate issued by CIT Nagar branch .

Point No. 2 :

W10 Nil

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 subordinates cadre and service conditions .

W11 Nil Xerox copy of the Reference book on staff matters Vol . III consolidated upto 31-12-95 .

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 claimedby him . No costs.

21. Thus , the reference is answered accordingly.

W12 06-03-97 Xerox copy of the 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.)

W13 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

K. JAYARAMAN , Presiding Officer

Witnesses Examined :

W14 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-J. Velmurugan.

Forthe Petitioner :WWI Sri G. Pandian WW2 Sri V. S. Ekambaram

W15 17-03-97 Xerox copy of the service particulars--- J. Velmurugan .

For the Respondent : MW1 Sri C. Mariappan

MW2 Sri C. Ramalingam

W16 26-03-97 Xerox copy of the letter advising selection of part time Menial-G. Pandi .

Documents Marked:

W17 31-03-97 Xerox copy of the appointment order to Sri G. Pandi.

Ex. No. Date

Description

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

W18 Feb. 2005 Xerox copy of the pay slip of T. Sekar for themonth of February , 2005 wait list No. 395 of Madurai Circle.

7878

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

Date

Ex. No.

Description

W19 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of waitlist.

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 ofthe Bipartite meeting.

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 .

W23 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

W24 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

Forthe 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 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 ofHigh Court of Orissa .

M9 10-07-99 Xerox copy of the order of Supreme Court in SLP No. 3082/99 .

M10 Nil

[PART II-SEC . 3 (ii)] अधिकरण, चेन्नई के पंचाट ( संदर्भ संख्या 156/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । [सं. एल-12012/408/1998- आई आर ( बी- I ) ] अजय कुमार, डेस्क अधिकारी NewDelhi , the 28th August , 2007

S.O. 2745. In pursuance of Section 17 of the Industrial Disputes Act, 1947 (14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 156/ 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 28-8-2007 .

[No. L- 12012/408 / 1998 - IR(B-I) ] AJAY KUMAR, Desk Officer

۱

ANNEXURE

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

Wednesday, the 31st January , 2007

PRESENT

K. Jayaraman , Presiding Officer

INDUSTRIAL DISPUTE NO . 156/2004 (Principal Labour Court CGID No. 199/99) [In the matter of the dispute for adjudication under clause ( d) of Sub- section ( 1 ) and Sub - section 2 (A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947), between the Management of State Bank of India and their workmen]

BETWEEN

Sri A. Ilayaperumal : I'Party/Petitioner

AND

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

APPEARANCE

Forthe Petitioner

Xerox copy of the wait list of Chennai Module.

M11 25-10-99 Xerox copy of the order passed in CMP Nos . 16289 & 16290/99 in W.A. No. 1893/99 .

नई दिल्ली, 28 अगस्त, 2007

का. आ. 2745.-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

: Sri V. S. Ekambaram, Authorised Representative Forthe Management : M/ s . K. S. Sundar, Advocates

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012/408 /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. 199/99 and issued notices to both parties . Both sides entered appearance and filed 7879 [भाग II-खंड 3(ii)]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

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. 156/2004.

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

"Whether the demand of the workman Shri A. Ilayaperumal wait list No. 436 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:-

with regard to his non -employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior. to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do notmerit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore, the Respondent's action 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.

4. As against this , the Respondent in its Counter The Petitioner was sponsored by Employment Exchange for the post of sub -staff in Class IV cadre inState Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis atKaruvepilankuruchi branch from 13-8-1982 . 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 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 Karuvepilankuruchi 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 tojoin at the branch where he initially worked as a class IV employee . From 13-8-1982, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Karuvepilankuruchi 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

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 ofregular appointment/absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Section 18 ( 1 ) and 18 (3) of I. D. Act in lieu ofprovisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were 7880

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

[PART II-SEC . 3 (ii)]

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 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 .

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 bepassed in his favour..

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India StaffFederation were under Section 18( 1 ) of the Act and not under Section 18(3 ) of the Act. As per recruitment rules ofthe Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank, Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence, the Petitioner prays that an award may be passed in his favour .

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

(i) "Whether the demand of the Petitioner in Wait List No. 436 for restoring the wait list of temporarymessengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

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. 436 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 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 listedat 436 , 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

(ii) " To what relief the Petitioner is entitled ?" before the Petitioner was engaged. It is also not correct to 7881

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

[भाग II- खंड 3 ( ii ) ].

Point No. 1 :

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/Bankhurriedly 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.

Court has held that Chapter V-A of the I. D. Act providing for retrenchment is not enacted only for 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 on behalfofthe Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further, a combined study of Ex . M1 and the averments ofMW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has givena raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B and C' is quite opposed to the doctrine of ' last come-first go ' or ' first come-last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies ofmessengers , farashes, cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters, copyofwhich is marked as Ex. W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions. In such circumstances, the absorption of casuals along with the eligible categories is not valid. Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions inEx. 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 . 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 9-1-91which 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 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 9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees : inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case, the Petitioner is not bound by settlement under Section 18(1) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore, they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars / guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all. Further, they have invoked the relevant provisions of Chapter 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 ofIndia Vs. S. Satyam and Others the Supreme

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rulings reported in 1985 4 SCC 201 H. D. Singh Vs. Reserve Bank of India and Others wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex . M10 wait list has not beenprepared in accordance with principle ofseniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex. M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter 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 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 of MW1 . Therefore , the termination ofthe Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy ofminutes ofconciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central) , Hyderabad, it is neither a 18 (3 ) settlement nor 12 (3 ) settlement as claimed by the Respondent/Bank which says 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 , they do not have any bearing in the case of the Petitioner. Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex. M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme , in the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's 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 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 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 ofIndia . 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 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 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 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 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 7883

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[भाग II-खंड 3 ( ii ) ]

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 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 findthemselves stranded in life midstream . They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour.

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 onthe 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 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 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 10. But , as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the I. D. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 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 7884

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underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent /Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

12. But, as against this on behalf of the Petitioner it iscontendedthat mere wording of reference is not decisive inthematter oftenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollamwherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot gobeyond the order of reference , if points of difference are discernible from the material before it , it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient 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

[PART II-SEC. 3 ( ii) ] 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 reliefprayed for by the Petitioner can be given to him or not ?But , I find that the settlement was validly entered into between theRespondent/B 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 ofselect list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits. In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion oftheir names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was preparedandthe fact that it was a yearly panel expiring on [भाग II-खंड 3 (ii) ]

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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 dailywage employees and have no right to the posts , their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of 'last come first go ' is not mandatory but only directory, onsufficientgrounds shown , the employer is permitted to depart from the said principle retrenching seniors and 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 .

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 DivisionBench , 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 on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IC2168 State of Haryana and Ors . Vs. Piara Singh and Others wherein 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 enteredby a back door ; (c) he was not eligible and qualified for the post at the time ofhis appointment; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held 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

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 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 [PART II -SEC . 3 (ii) ] 7886

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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 inthe settlements which were subsequently amendedby 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 ofthe 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 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 :

madeby following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment , do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme ofappointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly 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 merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules ." Further, in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh , wherein the Supreme Court has held that "regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry of purported period ofprobation would not arise . " Further , in CDJ 2006 SC 395 Municipal Council , Sujanpur Vs. Surinder Kumar , the Supreme Court has held that " it is not disputed that the appointment 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 ofconstitutional 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 . " 2006

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 भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

[भाग II- खंड 3 ( ii ) ]

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 reliefas 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 : WW1 Sri A. Ilayaperumal 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 Хегох copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. M1 .

W3 24-04-91 Xerox copy of the circular of Respondent /Bank to all branches regarding absorption of daily wagers in messenger vacancies ..

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to do messengerial work.

W9 18-07-88 Xerox copy of the service certificate issued by Karuvepilankurichi ADB branch.

W10 Nil Xerox copy of the statement showing serviceparticulars of the Petitioner .

7887 Date

Ex. No.

Description

05-06-98

W11

Xerox copy of the service certificate issued by Karuvepilankurichi ADB branch.

W12 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditions .

W13 Nil Xerox copy ofVol . III of Reference book onstaffmatters upto 31-12-95 .

06-03-97

W14

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

06-03-97

W15

Xerox copy of the 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 .

W19 31-03-97 Xerox copy of the appointment orderto Sri G. Pandi .

W20 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month of February, 2005 wait list No. 395 ofMadurai Circle .

W21 13-02-95 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 ofthe Bipartite meeting.

W24 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 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 about appointment of temporary employees in subordinate cadre .

7888

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

FortheRespondent/Management :

Date

Ex . No.

Description

MI

Xerox copy of the settlement. 17-11-87

Хегоx copy of the settlement.

M2 16-07-88

M3

Xerox copy of the settlement. 27-10-88

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

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

M6 09-06-95 Хегох 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 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, 28 अगस्त, 2007

का. आ. 2746.- 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 96/2004) को प्रकाशित करती है , जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । [सं. एल -12012/ 298/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 28th August, 2007

S.O. 2746. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 96/ 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 28-8-2007 .

[No. L- 12012/298 / 1998 - IR (B -I) ] AJAY KUMAR, Desk Officer

ANNEXURE

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

Wednesday, the 31st January, 2007

PRESENT

K. Jayaraman , Presiding Officer

[PART II-SEC . 3 (ii)] INDUSTRIAL DISPUTE No. 96/2004 (Principal Labour Court CGID No. 39/99) [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 of1947 ), between the Management of State Bank of India and their workmen]

BETWEEN

: I Party/Petitioner Sri M. Thangavel

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 : M/s . V. Sundar Anandan , Advocates

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/298 / 98 -IR (B - I) dated 2-2-1998 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 39/99 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. 96/2004.

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

"Whether the demand of the workman Shri M. Thangavel wait list No. 311 for restoring the wait listoftemporary messengers in the establishment of StateBank of India and consequential appointment thereupon as temporary messenger is justified ? If so, towhat relief the said workman is entitled ? " 3. The allegations of the Petitioner in the Claim Statement are briefly as follows :-

The Petitioner was sponsored by Employment Exchange for the post of sub - staff in Class IV cadre inState Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis atKulithalai branch from 19-9-1985 . During 1985-86 the Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filedby State Bank Employees' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court .

7889 भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

[ भाग II- खंड 3 ( ii) ]

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

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service : Hence , the question of regular appointment/ absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Section 18 (1 ) and 18 (3 ) of 1. D. Act in lieu ofprovisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87 , 16-7-88,7-10-88,9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) 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. 311 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 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 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 ofthe 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 orallytojoin at the branch where he initially worked as a class IV employee. From 19-9-1985 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Trichirapalli 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 thenumber 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 notmerit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action 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 to their whims and fancies .

3725G1/07-57 7890

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedworkmen with ulterior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour .

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights 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. 311 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 :

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 of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 311 , he was not appointed. The said settlements were bona fide which were the only workable solution and isbinding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act , 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary 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 cmployment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of 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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines /circulars of the Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/ Bank terminated several temporary employees in the year 1985 , the State Bank Employees 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 itis 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 [ भाग II- खंड 3(ii) ]

7891

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

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 these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18(1) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary employees at branches /offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V -A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as 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 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 rav deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 ofEx. M1 deals with categorization of retrenched temporary employees into ' A , B and C ' , but this categorization of ' A, B and C ' is quite opposed to the doctrine of ' last come first go ' or ' first come-last go ' and therefore , the categorization in Clause 1 is illegal. Clause 1 (a) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further, engaging

casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex . W8 . Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were 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 notbeen 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 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 asper Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment ofMWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/ Bankby combining equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates .While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals. Therefore, both belong to two different and distinct categories . But , Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter 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 [PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7892

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 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 beendisposed 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 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 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 Intemational 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 theirapplication for absorption as per the bank's circular andtherefore, their retrenchment is illegal. In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements /lapsing ofwait lists and out of these Petitioners . some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in non-preparation of separate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/published even after the Court order in WMP No. 11932/91 and W. P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex. M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex. M10 has been prepared in violation 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 after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2(oo) ofthe I. D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though thePetitioner 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 beenprepared 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 snot 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 documentto show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also forthe averment ofMW 1. Therefore , the termination ofthe 7893 [ भाग II-खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 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.

settlement . " It further held that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration." Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs.PresidingOfficer and Others wherein the Supreme Court has held that " settlement are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category , if the settlement was reached with a representative union ofwhich the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the 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 tic 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 thein , they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further , he argued that no union of the bank has questioned the settlement and in such circunistances , 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 contendedthatthough the reference made in this case arid 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 retrenchinent 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 sce 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 .

10. But , as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service. Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the I. D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority . The Respondent/ 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 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 workinen . " 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 [PART II- SEC . 3 (ii)] 7894

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

Bank, I find the Petitioner is not entitled to question the settlement .

12. But , as against this on behalf of the Petitioner it is contended that mere wording ofreference is not decisive inthematter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference , if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein theMadhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. Sambanthan Vs. Presiding Officer, Labour Court, Madras , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view , it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation 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 iswhether a candidate whose name appears in the select list on the basis ofcompetitive examination acquires a right ofappointment in Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction innumber ofvacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory ." He further relied on the rulings reported in 1997 6 SCC 584 Syndicate Bank & Ors . Vs. Shankar Paul and Others wherein the Supreme Court has held that "by its letter dated 7-2-87 the bank informed the Respondents that 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 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 ofthe panel . The claim of the Respondents as contained in the W.P. was thus misconceived and therefore , the learned Single Judge and the Division Bench , whenit first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no 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 ofthedate 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 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/ [ भाग II-खंड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

7895 to the existence of a vacancy . The direction in effect means 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 '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 . 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.

that every ad hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; ( b ) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby a back door; (c) he was not eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad hoc employee for one year, it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a inechanical act but a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 II SCC 1 Ashwani Kumar and Others Vs. State of Bihar and Others wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad hoc basis against an available vacancy which is already sanctioned . But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these mployees , 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 and Ors . Vs. State of Bihar and Ors . wherein the Supreme Court has held that " they are temporary einployees working

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 wageworker is continued for a tinre 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 ofselection 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 7896

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further, in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh , wherein the Supreme Court has held that " regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation ofan employee upon the expiry ofpurported period ofprobation would not arise . " Further , in CDJ 2006 SC395 Municipal Council , Sujanpur Vs. Surinder Kumar, the Supreme Court has held that " it is not disputed that the appointment 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 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

[PART II-SEC . 3 (ii )] 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 forreinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled for the same relief.

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation, merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation, privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore, I find this point against the Petitioner.

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him . No costs.

21. Thus , the reference is answered accordingly.

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January, 2007. )

K. JAYARAMAN , Presiding Officer Witnesses Examined :

For the Petitioner : WW1 Sri M. Thangavelu

WW2 Sri V. S. Ekambaram For the Respondent : MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj 7897

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

[ भाग II- खंड 3 ( ii ) ]

Documents Marked :

Ex. No. Date

Description

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

W2 20-04-88 Хегох copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 .

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all branches regarding absorption of daily wagers in messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

W5 20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent /Bank to all branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil Xerox copy of the instruction in Reference book on staff about casuals not to be engaged at office/branches to domessengerial work.

W9 03-10-96 Xerox copy of the service certificate issued by Kulithalai Branch. 18-07-86

W10

Xerox copy of the service certificate issued by Trichy branch..

W11 . Nil Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent /Bank regarding recruitment to subordinate cadre and service conditions .

W12 Nil

Xerox copy ofthe Vol . III of Reference. book onstaffmatters upto 31-12-95. 06-03-97

W13

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

17-03-97

W16

Xerox copy ofthe service particulars- J.Velmurugan.

3725 Gl/ 07-58

Ex. No. Date

Description

26-03-97

W17

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

31-03-97

W18

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

W19 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month ofFebruary, 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 .

W2109-11-92 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 .

For the Respondent/Management :

Date

Ex. No.

Description

M1

Xerox copy of the settlement .

17-11-87

M2

Xerox copy of the settlement .

16-07-88

M3

Xerox copy of the settlement. 27-10-88

M4

Xerox copy of the settlement .

09-01-91

M5

Xerox copy of the settlement .

30-07-96

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

M7 28-05-91

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

M11 25-10-99 Xerox copy of the order passed in CMP Nos . 16289 & 16290/99 in W.A. No. 1893/99 .

7898

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

नई दिल्ली, 28 अगस्त, 2007

का. आ. 2747.- 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 59/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । [सं. एल-12012/369/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 28th August, 2007

S.O. 2747. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 59/2004) 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 28-8-2007 .

[No. L- 12012/369/1998- 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. 59/2004 (Principal Labour Court CGID No. 81/99) [In the matter of the dispute for adjudication under clause (d) of Sub- section ( 1 ) and Sub-section 2(A) of Section 10 ofthe Industrial Disputes Act , 1947 ( 14 of 1947) , between the Management ofState Bank of India and their workmen]

BETWEEN

Sri P. Perumal

: I Party/Petitioner

'AND

The Assistant General : II Party/Management Manager,

State Bank of India , Zonal Office,

Madurai .

APPEARANCE

:

ForthePetitioner

Sri V. S. Ekambaram , Authorised Representative For the Management : Mr. D. Mukundan , Advocate

[PART II-SEC. 3 (ii)]

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012/369/ 98 - IR(B - I ) dated 5-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No. 81/99 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. 59/2004.

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

"Whether the demand of the workman Shri P. Perumal , wait list No. 443 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 inState Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis atKurumbur branch from 2-1-1981 . 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, 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 inthe prescribed format through Branch Manager of the Kurumbur 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 2-1-1981 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Kurumbur 7899 [भाग II-खंड 3 (ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

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 Managerofthe 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 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 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 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 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 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 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) 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. 443 in wait list of Zonal 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 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 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 of492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 443 , 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 [PART II--SEC . 3 ( ii) ] THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7900

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

(1) "Whether the demand of the Petitioner in Wait List No. 443 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

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

Point No. 1 :

of bank level 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.

8. In this case, on behalf of the . Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Unionhad filed a Writ Petition before the Supreme Courtto protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (civil) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . MI . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement . as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement , the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore, the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmenwith ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may he passed in his favour.

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18(1) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/offices are not allowed to be in service 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 .

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भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

[भाग II-खंड 3 (ii) ]

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 of the workmento whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalfof the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex . M1 and the averments of MW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B and C ' is quite opposed to the doctrine of ' last come--first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex. M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex . W8 . Further , the appointment 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. 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 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 belongs to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 and 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex. M10 namely wait list is not 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 of instructions and ceased to have the credibility attached to the wait list. Above all , Ex. M1 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 . Itis 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 7902

THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II -SEC. 3(ii) ]

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 oftheRespondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on whichthe Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 Workmen of American Express International Banking Corporation Vs. Management of American Express International Banking Corporation wherein the Supreme Court has held that " the expression ' actually worked under the employer' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc." . It is further argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have 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 .

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 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 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bankhas 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 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 , 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

10. But, as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference made by theGovernment itself is not maintainable in view ofthe facts and circumstances ofthe 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 [ भाग II-खंड 3( ii) ]

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Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore, it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workmanwith wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner còntended 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.

exigency for the performance of duties as messenger. Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the federation were bona fide which were the only workable solution and isbinding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected . Furthermore , the said settlements were not questioned by anyunion and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 I LLJ 323 Associated Glass Industries Ltd. Vs. Industrial Tribunal A.P. and Others wherein under Section 12 (3) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion , the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent , it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the settlement. " It further held that " there may be exceptional cases, where there may be allegations of mala fides , fraud or even corruption or other inducements . But , in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration ." Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. Ltd. Vs. Presiding Officer and Others wherein the Supreme Court has held that " 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 onall workmen of the establishment . Even in case of the first category , if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be birding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering

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 IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal , Kollam wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot gobeyond the order of reference , if points of difference are discernible from the material before it , it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held that "the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient Paper Mills Vs. Industrial Tribunal & Ors . wherein the Madhya Pradesh High Court has held that " the Tribunal [PART II-SEC . 3 (ii)] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007 /BHADRA 31 , 1929

7904

cannot go behind the terms ofreference , 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 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 framedtothe 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 ofthe 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 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 1997'6 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 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 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 LABIC 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 ad hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence ofa vacancy. The direction in effect means that every ad hoc/temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b ) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had enteredby aback door ; (c) he was not eligible and qualified for the post at the time of his appointment; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation ofan ad hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of 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 onlyquestion 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 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 [भाग II- खंड 3 (ii ) ]

7905 भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

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 , 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 and 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 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.

15. Learned Senior Advocate further argued that evenin recent decision reported in 2006 4 SCC I Secretary , State of Karnataka Vs. Uma Devi , the Supreme Court has held that " merely because a temporary employee or a casual 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 ofpublic appointment which is not permissible. " Further , the Supreme Court while laying down the law , has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee.. It has to be clarified that merely because atemporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due. process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 National Fertilizers Ltd. and Others Vs. Somvir Singh , wherein the Supreme Court has held that "regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry of purported period ofprobation would not arise . " Further , in CDJ 2006 SC 395 Municipal Council , Sujanpur Vs. Surinder Kumar , the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. " Further, in 2006 2 LLN 89 Madhya Pradesh State Agro Industries Development Corporation Vs. S. C. Pandey wherein the Supreme Court has held that "only because an employee had worked for more than 240 days 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 3725G1/07-59 7906

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 thepreparation of wait list or number allotted to them . Under such circumstances, it cannot be questioned by the Petitioner.

[PART II-SEC . 3( ii)] regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner.

Point No. 2 :

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

20. In view of my foregoing findings that the petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him . No costs .

21. Thus , the reference is answered accordingly .

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open court on this day the 31st January , 2007.)

K. JAYARAMAN, Presiding Officer Witnesses Examined :

Forthe Petitioner : WW1 Sri P. Perumal WW2 Sri V. S. Ekambaram For the Respondent : MWI Sri C. Mariappan MW2 Sri M. Perumal

Documents Marked :

Ex. No. Date

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 Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation of Ex . MI .

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 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 Хегоx copy of the circular letter ofZonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil

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

[भाग II-खंड 3 (ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

7907 Ex. No. Date

Description

For the Respondent/ Management :

W9 01-08-88

Ex. No. Date

Description

Xerox copy of the service particulars of Petitioner issued by Kurumbur 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 settlement.

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

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

W11 Nil

M6 09-06-95

:

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

Xerox copy of the minutes ofconciliation proceedings .

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

M8

W12 06-03-97 Xerox copy of the call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

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

W13 06-03-97

M9 10-07-99 Xerox copy ofthe order ofSupreme Court in SLP No. 3082/99 .

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

M10 Nil

W14 06-03-97 .

Xerox copy of the wait list of Madurai Module.

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 Nos . 16289 & 16290/99 in W.A. No. 1893/99 .

W15 17-03-97 Xerox copy of the service particulars- J.Velmurugan.

नई दिल्ली, 28 अगस्त, 2007

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 .

का. आ. 2748.- 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 60/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । W18 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

W19 13-02-95

[सं. एल-12012/ 269/ 1998- आई आर ( बी-1 ) ] 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 28th August , 2007 W2009-11-92 Xerox copy of the Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W21 09-07-92 Xerox copy ofthe minutes of the Bipartite meeting.

W22 09-07-92 Xerox copy of the settlement between

S.O. 2748.- In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 60/ 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 28-8-2007 .

[No. L- 12012/269/ 1998 - IR(B -I) ] AJAY KUMAR, Desk Officer Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

ANNEXURE

W23 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 .

W24 31-12-85

Wednesday, the 31st January, 2007 PRESENT

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

K. Jayaraman, Presiding Officer 7908

[PART II SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007 /BHADRA 31 , 1929

INDUSTRIAL DISPUTE No. 60/2004

(Principal Labour Court CGID No. 82/99)

[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 P. Manivel

: I Party/Petitioner

AND

The Assistant General : II Party/Management

Manager,

State Bank of India ,

ZonalOffice ,

Madurai.

APPEARANCE

For the Petitioner : Sri V. S. Ekambaram ,

Authorised Representative

Mr. D. Mukundan ,

For the Management :

Advocate

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012/269 / 98 - IR (B - I ) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 82/99 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. 60/2004.

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

"Whether the demand of the workman Shri P. Manivel, wait list No. 321 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 :-

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 Palamedu branch. He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But, they have not informed the result ofinterview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . The Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Palamedu 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 inade a fresh representation to Govt, to reconsider the reference and the Petitioner requested the Respondent /Bank to continue to engage him in service as obtained prior to 31-3-97 and to 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 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 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 Palamedu branch from 11-02-1981 . 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 [भाग II-खंड 3 ( ii) ]

7909.

भारत का राजपत्र: सितम्बर 22, 2007 / भाद्र 31 , 1929

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 .

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 of492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 321 , 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 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 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 . t

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 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. 321 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

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 7910

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[PART II-SEC. 3 (ii) ]

questioned the 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 of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18(3 ) of the Act . As per recruitment rules ofthe Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner. Hence , the Petitioner prays that an award may -be passed in his favour.

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

(1) "Whether the demand of the Petitioner in Wait List No. 321 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ?"

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

Point No. 1 :

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as temporary employees inthe Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18( 1 ) entered into between the alleged Federation and the Respondent/Management. They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary employees 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 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 rawdeal to the Petitioner from the beginning linking his future with the settlements. Further , Clause 1 ofEx . 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. 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 of the 8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed interms ofthe relevant guidelines/ circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Unionhad filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 ( civil ) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and 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 [भाग II-खंड 3 ( ii) ]

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भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

separate panels amounts to violation of circular. Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released/ published even after the Court order in WMP.No. 11932/91 and W. P. No. 7872/91 directing the Respondent/ Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex . M10 does not carry particulars about the candidates date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex. M10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of conciliationproceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further , even before or after the settlement onabsorption 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 ofIndia and Others wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex. M10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contraryto law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it . Though clause2(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 guidelines mentioned in Reference Book on Staff matters , copy ofwhich is marked as Ex . W8 . Further , the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even 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 in theMadras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except his bald statement. Further , according to MW1 wait list under Ex . M10 was prepared on2-5-92but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealtwith daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are notjustified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation ofArticle 14 of Constitution of India . Further, the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attemptto wriggle out the illegality committed or perpetrated by the Respondent/Bank by 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 of Ex. M10 namely wait list is not in conformity with the instructions of Ex. M2 and non - preparation of 7912

[PART II-SEC. 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 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.

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 , 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 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 11 LLJ 539 Workmen of American Express International Banking Corporation Vs. Management ofAmerican Express International Banking Corporation wherein the Supreme Courthas held that " the expression ' actually worked under the employer' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. ". It is further argued that call letters produced 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

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 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same . To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the conciliation officer and to discourage an individual employee or a minority union from scuttling the 7913

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[भाग II-खंड 3 ( ii) ]

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 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.

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 onthe rulings reported in 1998 LAB IC 345 Secretary, Kollam Jilla Hotel and Shop Workers Union Vs. Industrial Tribunal, Kollam wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability ofa reference . Even though the Tribunal cannot gobeyond the order ofreference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exaet nature of dispute instead of refusing to answer the reference on merits ." Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient PaperMills Vs. Industrial Tribunal & Ors . wherein 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 wouldprolong the industrial adjudication. The Labour Court isexpected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it 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 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 .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated inservice with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt. is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

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/ 3725 Gl/07-60 [PART II SEC. 3 (ii )] THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7914

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) 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 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation ofan ad hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot he 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 he 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 óccasion 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 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time ofwait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 Union of India and Others Vs. K. V. Vijeesh wherein the Supreme Court has 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 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 . 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 "hy 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 of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim ofthe Respondents as contained in the W.P. was thus misconceived and therefore , the learned Single Judge and the Division Bench , whenit first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 Shankarsan Dash Vs. Union of India wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even 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 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 7915 भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

[भाग II-खंड 3 (ii ) ]

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

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 ofpurported periodofprobation would not arise . " Further , in CDJ 2006 SC 395 Municipal Council, Sujanpur Vs. Surinder Kumar, the Supreme Court has held that " it is not disputed that the appointment ofthe Respondent was not in sanctionedpost. Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation ofconstitutional 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 240days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this Court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore. "

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further, their prayer before the labour authorities was 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 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 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 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. 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 7916

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC . 3 (ii) ]

Ex. No. Date

Description

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4.

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 .

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.

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 06-05-91 Xerox copy of the service certificate issued by Palamedu branch .

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 casemustbe 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:

W10 08-02-95 Xerox copy of the service certificate issued by Palamedu branch .

W11 28-11-00

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

Xerox copy of the service certificate issued by Palamedu branch.

W12 28-11-00 Xerox copy of the service certificate issued by Palamedu branch .

W13 Nil Xerox copy ofthe attendance register.

W14 Nil

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled tobe 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.

Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre and service conditons .

W15 Nil

(Dictated to the P.A. , transcribed and typed by him , corrected and pronounced by me in the open Court on this daythe31st January, 2007.)

K. JAYARAMAN, Presiding Officer .

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

Witnesses Examined :

W16 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-V. Muralikannan.

Forthe Petitioner : WW1 Sri P. Manivel WW2 Sri V. S. Ekambaram

For the Respondent : MWI Sri C. Mariappan MW2 Sri M. Perumal

W17 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-K. Subburaj .

Documents Marked:

Ex. No. Date

Description

W18 06-03-97 Xerox copy ofthe call letter from Madurai zonal office for interview of messenger post-J. Velmurugan.

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

W19 17-03-97 Xerox copy ofthe service particulars- J.Velmurugan.

W2 20-04-88 Хегох copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. M1 .

W20 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

[ भाग II-खंड 3 (ii) ]

7917

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

Ex. No. Date

Description

नई दिल्ली, 28 अगस्त, 2007 W21. 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W22 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle .

का. आ. 2749.- 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 104/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था । W23 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel of wait list .

[सं . एल-12012/250/1998- आई आर (बी-1 ) ] अजय कुमार , डेस्क अधिकारी W24 09-11-92 Xerox copy ofthe Head Office Circular No. 28 regarding norms for sanction of messenger staff.

New Delhi , the 28th August, 2007 W25 09-07-92 Xerox copy ofthe minutes ofthe Bipartite meeting.

W26 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 .

S.O. 2749. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 104/ 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 28-8-2007.

[No.L - 12012/250/ 1998 - IR (B- I) ] AJAY KUMAR, Desk Officer

ANNEXURE

W27 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

W28 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

Wednesday, the 31st January , 2007 For the Respondent/Management :

PRESENT

Ex. No. Date

Description

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

K. Jayaraman , Presiding Officer INDUSTRIAL DISPUTE ΝΟ . 104/2004 M2 16-07-88 Xerox copy of the settlement.

(Principal Labour Court CGID No. 74/99) 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 .

[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

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

: I Party/Petitioner

Sri R. Fatimaraj

AND

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

: II Party/Management 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 ofthe order ofSupreme Court in SLP No. 3082/99.

The Assistant General State Bank of India , Manager, Region-I Trichirapalli

APPEARANCE

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

Forthe Petitioner : SriV. 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.

Forthe Management : M/s . V. Sundar Anandan , Advocates [PART II-SEC. 3 (ii )] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

7918

AWARD

The Central Government , Ministry of Labour vide Order No. L- 12012 /250/98 - IR (B - I ) dated 5-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 74/99 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. 104/2004.

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

"Whether the demand of the workman Shri R. Fatimaraj , wait list No. 477 for restoring the wait list oftemporary messengers in the establishment ofState Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ? "

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

advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non - employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance ofthe Petitioner, he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand 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 ofrelevant provisions of circular. The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment ofpetty cash or by directing himto work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

4. As against this, the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Sections 18 (1 ) and 18 (3 ) ofI . D. Act in lieu ofprovisions of law, retrenchment and implemented by Respondent/Bank.

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 atLalgudi 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 ofWrit 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 interviewto 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 1981 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . While working on temporary basis in Tiruchirapalli branch, another 7919 [ भाग II-खंड 3 (ii) ]

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

The claim of the Petitioner is not bona fide and made with and the settlements ofbank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain suchplea . 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 .

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India . In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedworkmen with ulterior motive . The Respondent/Bank hasbeen arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour .

6.Again, the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 (1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules ofthe Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W. P. No. 7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

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. 477 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 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 femporary 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 wasdue to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements out of652 wait listed candidates, 212 temporary employees were appointed and since the Petitioner was wait listed at 477 , 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

1 7920

[PART II-SEC . 3( ii)] THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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

(1) "Whether the demand of the Petitioner in Wait List No. 477 for restoring the wait list of temporary messengers in the Respondent/Bank and consequential appointment thereupon as temporarymessenger is justified ? "

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

Point No. 1 :

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars ofthe Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees 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.

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 stated that the Petitioner has not worked for more than 240 days in a continuous periodof 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/ offices are not allowed to be in service

exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V-A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched 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 onbehalfofthe Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex . M1 and the averments of MW1 and MW2 and their testimonies during the cross examination will clearly show how the bank has given a rawdeal 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 . 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 of the guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex . W8 . Further, the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with theeligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex. W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MWI is unable to say as to when the wait list Ex . M10 was prepared,but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . M1 , M3 and M4 respectively.

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But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in theMadras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement. Further, according to MW1 wait list under Ex . M10 was prepared on2-5-92but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W. P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as perBipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages. daily on mutual agreement basis . In such circumstances, as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 ofConstitution of India . ' Further, the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle 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. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative ofArticles 14 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 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 . Ml was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these Petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their

appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take 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 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 notbeen prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those whojoined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and inbreach of it. Though clause 2( e) ofEx .M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the 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 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 . 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 , 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 3725 GI /07-61 [PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

7922

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 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 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.

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. Butthe Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion , the settlement is binding on the workmen ." Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course of the 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 ofconciliation 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 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 10. But, as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference madeby the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and 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 ofthe 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 [भाग II-खंड 3 (ii) ]

Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that "settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore, it is binding on the Petitioner . Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

11. Learned counsel for the Respondent further contended thatthough the reference made in this case and other connected disputes is ' whether the demand of the workmanwith wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

12. But , as against this on 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 gobeyond the order of reference , ifpoints of difference are discemible 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 Orient PaperMills Vs. Industrial Tribunal & Ors . wherein the Madhya Pradesh High Court has held that " the Tribunal

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भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 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 orderunder reference in a technical manner or a pedantic manner, but should consider the order of reference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction . to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court isexpected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor.. was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and 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, 1 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 .

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 19963 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 7924

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 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, 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.

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 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, 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 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 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 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 7925 [ भाग II-खंड 3 ( ii) ]

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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 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 , the Petitioners have made so many allegations with regard topreparation of wait list and also settlements entered into between the Respondent/Bank and Federation , at the time ofreference, they have not questioned the settlement nor the number allotted to each individual in the wait list. Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account of mala fide , misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and. since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary . employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services ofthe Respondent/ Bank .

18. Further, the representative for the Petitioner contended that in 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. 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 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 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 ofthe Respondent was not in sanctioned post . Being a ' State' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules. Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law ." Further , in 2006 2 LLN 89 Madhya Pradesh State Agro Industries Development Corporation Vs. S.C. Pandey wherein the Supreme Court has held that "only because an employee had worked for more than 240 days of service by that itself would not confer any legal right uponhim to be regularised in service . " The Supreme Court also held that " the changes brought about by the

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Courtprobably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim 7926

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC . 3 ( ii )]

Ex. No. Date

Description

W9 15-06-88

regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner.

Xerox copy of the service certificate issued by Kattur ADB branch .

1

PointNo. 2:

W10 18-06-88 Xerox copy of the service certificate issuedby Lalgudi branch.

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

W11 17-12-91 Xerox copy of the service certificate issued by Lalgudi branch.

W12 Nil Xerox copy of the service certificate issued by Lalgudi branch .

W13 31-03-93

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.

Xerox copy of the service certificate issued by Trichy branch.

21. Thus , the reference is answered accordingly.

W14 06-05-94 Xerox copy of the service certificate issued by Trichy branch .

W15 19-06-95

(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.)

Xerox copy of the service certificate issued by Trichy branch .

K. JAYARAMAN, Presiding Officer

W16 16-07-96

Witnesses Examined :

Xerox copy of the service certificate issued by Tiruchirapalli branch .

Forthe Petitioner : WW1 Sri R. Fathimaraj

W17 25-03-98

WW2 Sri V.S. Ekambaram

Xerox copy of the service certificate issued by Tiruchirapalli branch .

W18 19-09-98

For the Respondent : MW1 Sri C. Mariappan

Xerox copy of the service certificate issued by Lalgudi branch .

MW2 Sri T.L. Selvaraj

W19 Nil

Documents Marked:

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 .

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

W20 Nil Xerox copy ofVol . III of Referencebook onstaffmatters upto 31-12-95.

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank forimplementation of Ex .M1 .

W21 06-03-97 Xerox copy of call letter from Madurai zonal office for interview of messenger post-V. Muralikannan .

W22 06-03-97

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4

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

01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

W23 06-03-97

W5

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

20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers.

W24 17-03-97 Xerox copy of the service particulars- J.Velmurugan.

W25 26-03-97

W6 15-03-97 Xerox copy ofthe circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

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

W7

W26 31-03-97 Xerox copy of the appointment order to SriG. Pandi.

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

W8 Nil

W27 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle .

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

W28 13-02-95 Xerox copy of the Madurai Module Circular letter about engaging temporary employees from the panel ofwait list .

7927. [भाग II-खंड 3( ii) ]

भारत का राजपत्र: सितम्बर 22, 2007/ भाद्र 31 , 1929

Ex. No. Date

Description

New Delhi , the 28th August, 2007 W29 09-11-92 Xerox copy ofthe Head Office Circular No. 28 regarding norms for sanction of messenger staff.

W30 09-07-92 Xerox copy ofthe minutes of the Bipartite meeting.

S.O. 2750.- In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 29/ 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 28-8-2007.

[No. L - 12012/ 558/ 1998 - IR(B- I) ] 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 the Respondent/Management :

K. Jayaraman, Presiding Officer Ex. No. Date

Description

INDUSTRIAL DISPUTE No. 29/2004 MI 17-11-87 Xerox copy of the settlement .

(Principal Labour Court CGID No. 276/99) Xerox copy of the settlement .

M2 16-07-88

M3

Xerox copy of the settlement .

27-10-88

M4

Xerox copy of the settlement.

09-01-91

[In the matter of the dispute for adjudication under clause (d) ofSub - section ( 1 ) and Sub - section 2 (A) of Section 10 ofthe Industrial Disputes Act , 1947 ( 14 of 1947), between theManagement of State Bank of India and their workmen] M5

Xerox copy of the settlement.

30-07-96

BETWEEN

M6 09-06-95

: I Party/Petitioner

Sri S. Mathaiyan

Xerox copy ofthe minutes of conciliation proceedings.

AND

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

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.

M9

Manager, State Bank of India , ZonalOffice, Madurai .

10-07-99 Xerox copy ofthe order ofSupreme Court in SLP No. 3082/99 . i

APPEARANCE

MIO Nil

:

Xerox copy of the wait list of Trichy Module.

Forthe Petitioner

Sri V. S. Ekambaram, Authorised Representative

For the Management :

M11 25-10-99 Xerox copy of the order passed in CMP No. 16289 & 16290/99 in W.A. No. 1893/99.

Mr.K. Veeramani , Advocate

AWARD

नई दिल्ली, 28 अगस्त, 2007

का. आ. 2750.-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 29/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था ।

The Central Government, Ministry of Labour vide Order No. L- 12012/558 / 98 - IR(B - I) dated 22-04-1999 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. 276/99 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. 29/2004.

[सं. एल-12012/558/1998- आई आर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी [PART II-SEC . 3 (ii)) 7928

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

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

"Whether the demand of the workman Shri S. Mathaiyan , wait list No. 321 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 workntan 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 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 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 .

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 atHarur branch from 12-8-1984 . 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 additionto 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 Harur 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 12-8-1984, the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also . Whileworking on temporary basis in Harur 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

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 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 ) ofI. 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 7929 भारत का राजपत्र: सितम्बर 22 , 2007/ भाद्र 31 , 1929

[भाग II-खंड 3 (ii) ]

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

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listedworkmen with ulterior motive . The Respondent/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 inade by the bank with the State Bank of India StaffFederation 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. 321 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 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. 321 in waitlist of ZonalOffice, 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 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 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 705 wait listed candidates, 211 temporary employees were appointed and since the Petitioner was wait listed at 321 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger. As per settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/ casual labour. Further, for circle of Chennai wait list ofdaily

372511107-62 7930

THE GAZETTE OF INDIA : SEPTEMBER 22, 2007/BHADRA 31 , 1929

[PART II-SEC . 3 (ii)] interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars ofthe Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Union had filed a Writ Petition before the Supreme 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 settlenient 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 reinstateinent 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 of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex. M1 and the averments of MWI and MW2 and their testimonies during the cross examination will clearly show how the bank has 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) 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 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 theeligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex . M10 in this case. Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MWI is unable to say as to when the wait list Ex . M10 was prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . M1 , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlenient 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 MWI 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 settlenient 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 9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as teniporary 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 inore than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars /guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V- A of the I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB and IC 2248 Central Bank ofIndia 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 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 daily on mutual agreement basis . In such circumstances , [ भाग II-खंड 3 (ii) ]

7931 भारत का राजपत्र : सितम्बर 22 , 2007/भाद्र 31 , 1929

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 behalfof 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 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 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 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(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 notbeen prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and 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 arty 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 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 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 3725 G1/07-63 7932

THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 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 CorporationVs. Management ofAmerican Express International Banking Corporation wherein the Supreme Courthas held that " the expression ' actually workedunder the employer' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment 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.

10. But, as against this , the learned Senior Counsel for the Respondent/Bank contended that the reference madeby the Government itself is not maintainable in view ofthe facts and circumstances of the case. The Petitioner inthis case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised . Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3) of the I. D. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are madewith ulterior motive. Further, they have concealed the material facts that the Petitioner was wait listed as per length ofhis engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ 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 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 receivedterminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. Butthe Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 Ashok and Others Vs. Maharashtra State Transport Corporation and Others whereintheDivision Bench ofthe Bombay High Court has held that" therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen 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 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 ofwhich the contesting workmenwere members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 National Engineering Industries Ltd. Vs. State of Rajasthan and Others wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fidé 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 7933 [ भाग II-खंड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 22, 2007/ भाद्र 31 , 1929

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 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 .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt. is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

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 .

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the 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 , if points ofdifference are discernible from the material before it , it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 Van Sagnathan Orient PaperMills Vs. Industrial Tribunal & Ors , wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties. " He also relied on the rulings reported in 1998 LAB IC 1507 A. Sambanthan Vs. Presiding Officer , Labour Court, Madras, wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between

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 iswhether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy. In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policydecision 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 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 withthe expiry of the panel . The claim ofthe Respondents as contained in the W.P. was thus misconceived and [PART II SEC . 3 (ii) ] 7934

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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 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 .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 Secretary,. State of Karnataka Vs. Uma Devi, the Supreme Court has held that "merely because a temporary employee or a casual wageworker is continued for a time beyond the term ofhis appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not madeby following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance oftemporary employees whose period of employment has come to an end or of ad hoc employees who by the very nature of their appointment, do not acquire any right. " Further, it has also therefore, the learned Single Judge and the DivisionBench , 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 on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation ofwait 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 ofHaryana 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 in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one . From this , the impugned directions must be held to be totally untenable and unsustainable. Thus , the Supreme Court set aside the orders oflower Courts . He further relied on the decision reported in 1997 II SCC 1 Ashwani Kumar and Others Vs. State of Bihar and Others wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question ofconfirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an [ भाग II-खंड 3 ( ii) ]

7935

भारत का राजपत्र : सितम्बर 22, 2007/भाद्र 31 , 1929

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 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 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.

held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employment with open eyes. It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme ofappointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible. " Further ,. the Supreme Court while layingdown the law, has clearly held that "unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee. It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further, in CDJ 2006 SC 443 National Fertilizers 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 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 case mustbe considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the 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.

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 7936

THE GAZETTE OF INDIA : SEPTEMBER 22 , 2007/BHADRA 31 , 1929

[PART II-SEC. 3 ( ii)] Point No. 2 :

Ex. No. Date

Description

W8 Nil

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

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

W9 02-08-86 Хегох copy of the service certificate issued by Harur Branch .

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him. No costs .

W10 05-08-88 Xerox copy of the service certificate issuedby Harur Branch.

21. Thus, the reference is answered accordingly.

W11 22-01-02 Xerox copy of the service certificate issued by Harur branch .

W12 Nil

(Dictated to the P.A. , transcribed and typed hy him , corrected and pronounced by me in the open court on this daythe 31st January , 2007.)

K. JAYARAMAN , Presiding Officer

Witnesses Examined :

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

Forthe Petitioner : WW1 Sri S. Mathaiyan

Nil

W13

WW2 Sri V. S. Ekambaram

Xerox copy ofVol . III ofReference book onstaffmatters upto 31-12-95.

For the Respondent : MW1 Sri C. Mariappan

W14 06-03-97

MW2 Sri S. Srinivasan

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

Documents Marked:

W15 06-03-97

Ex. No. Date

Description

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

W1 01-08-88

W16 06-03-97

Xerox copy of the paper publication in dailyThanthi based on Ex .M1 .

W2

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

W17 17-03-97

20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation of Ex . M1 .

Xerox copy of the service particulars- J.Velmurugan.

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

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in messenger vacancies .

W19 31-03-97

W4

Xerox copy of the appointment order to SriG. Pandi .

01-05-91 Хегоx copy of the advertisement in The Hindu on daily wages based on Ex . W4.

W20 Feb. 2005

W5

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

20-08-91 Xerox copy of the advertisement in The Hindu extending period of qualifying service to daily wagers .

W21 13-02-95

W6

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

15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W22 09-11-92

W7

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

W23 09-07-92

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 ofthe minutes ofthe Bipartite meeting.

[ भाग II- खंड 3 (ii) ]

7937

भारत का राजपत्र: सितम्बर 22, 2007/भाद्र 31 , 1929

और केन्द्रीय सरकार की राय है कि लोकहित में उक्त कालावधि को छः मास की और कालावधि के लिए बढ़ाया जाना अपेक्षित है ;

W24 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 . :

अतः अब, औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14) की धारा 2 के खण्ड ( द ) 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 24-9-2007 से छः मास की कालावधिके लिए लोक उपयोगी सेवा घोषित करती है । W25 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

[फा. सं. एस -11017/1/2003- आई. आर. ( पी.एल. ) ] गुरजोत कौर, संयुक्त सचिव W26 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

New Delhi , the 17th September , 2007 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 Хегох copy ofthe settlement .

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

S.O. 2751. Whereas the Central Government having been satisfied that the public interest so requires that in pursuance of the provisions of sub - clause (vi ) of clause (n) of Section 2 of the Industrial Disputes Act, 1947 (14 of1947), declared by the Notification ofthe Government of India in Ministry of Labour S.O. No. 946 dated 22-03-2007 the service in Hindustan Aeronautics Limited which is covered by item 8 of the First Schedule to the Industrial Disputes Act , 1947 (14 of 1947) to be a public utility service for the purpose of the said Act , for a period ofsix months from the 24th March , 2007 .

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

M7

Andwhereas , the Central Government is of opinion that public interest requires the extension of the said period. by a further period of six months .

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 .

Now, therefore, in exercise of the powers conferred by the proviso to sub - clause ( vi) ofclause (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 purposes ofthe said Act , for a period ofsix months from the 24th September, 2007.

M10 Nil Xerox copy ofthe wait list of Coimbatore Module.

[F. No. S - 11017/ 1/2003 - IR (PL)] GURJOT KAUR, Jt. Secy .

नई दिल्ली, 17 सितम्बर, 2007

M11 25-10-99 Xerox- copy of the order passed in CMP No. 16289 & 16290/99 in W.A. No. 1893/99.

नई दिल्ली, 17 सितम्बर , 2007

का. आ. 2752.-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. 945 दिनांक 21-3-2007 द्वारा करेंसी नोट प्रेस, नासिक रोड, जोकि औद्योगिक विवाद अधिनयम, 1947 ( 1947 का 14 ) की प्रथम अनुसूची की प्रविष्टि 25 में शामिल है, को उक्त अधिनियम के प्रयोजनोंके लिए दिनांक 21 मार्च, 2007 से छः मास की कालावधिके लिए लोक उपयोगी सेवा घोषित किया था;

का. आ. 2751.-केन्द्रीय सरकार संतुष्ट हो जाने पर कि लोकहित मेंऐसा करना अपेक्षित था, औद्योगिक विवाद अधिनियम, 1947 ( 1947 का 14 ) की धारा 2 के खण्ड ( ढ़ ) के उप -खण्ड ( vi ) के उपबंधोंके अनुसरण में भारत सरकार के श्रम मंत्रालय की अधिसूचना संख्या का. आ. 946दिनांक 22 मार्च, 2007 द्वारा हिन्दुस्तान एरोनॉटिक्स लिमिटेड जोकि औद्योगिक विवाद अधिनयम , 1947 ( 1947 का 14) की प्रथम अनुसूची की प्रविष्टि8 में शामिल है , को उक्त अधिनियम के प्रयोजनों केलिए दिनांक 24-3-2007 से छः मास की कालावधि के लिए लोक उपयोगी सेवा घोषित किया था;

औरकेन्द्रीय सरकार की राय है कि लोकहित में उक्त कालावधि को छः मास की और कालावधि के लिए बढ़ाया जाना अपेक्षित है;

7938

THE GAZETTE OF INDIA: SEPTEMBER 22 , 2007/BHADRA 31 , 1929

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

the service in Currency Note Press, Nashik Road which is covered by item 25 of the First Schedule to the Industrial Disputes Act, 1947 ( 14 of 1947) to be a public utility service for the purpose of the said Act, for a period of six months with immediate effect.

अतः अब, औद्योगिक विवाद अधिनयम, 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 21-9-2007 से छः मास की कालावधि के लिए लोक उपयोगी सेवा घोषित करती है ।..

And whereas , the Central Government is of opinion thatpublic interest requires the extension ofthe said period by a further period of six months .

[फा. सं. एस -11017/2/2006- आई . आर. ( पी.एल. ) ] गुरजोत कौर, संयुक्त सचिव

New Delhi , the 17th September , 2007

Now, therefore, in exercise ofthe powers conferred by theproviso 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 purposes of the said Act, for a period ofsix months from the 21st September, 2007 .

S.O. 2752.- Whereas the Central Government having been satisfied that the public interest so requires that in pursuance of the provisions of sub - clause ( vi) of clause (n) of Section 2 of the Industrial Disputes Act, 1947 (14 of1947) , declared by the Notification ofthe Government of India in Ministry ofLabour S.O. No. 945 dated 22-3-2007

[F. No. S- 11017 /2/ 2006- IR (PL) ] GURJOT KAUR, Jt . 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

Cite this issue. Weekly Gazette of India, Government of India, 22 September 2007. Indian Gazettes, https://egazette.servantsofknowledge.in/details/in.gazette.central.w.2007-09-22.31511/. Archive identifier in.gazette.central.w.2007-09-22.31511.