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REGD . NO. D. L. (N ) 04 /0007/2003-05 रजिस्ट्री सं. डी. एल. (एन ) 04/ 0007/2003-05

भारतका राजपत्र The Gazette of India

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नई दिल्ली, सितम्बर 23 सितम्बर 29 , 2007 , शनिवार/आश्विन 1 आश्विन7 , 1929 NEW DELHI, SEPTEMBER 23- SEPTEMBER 29 , 2007, SATURDAY/ ASVINA1- ASVINA 7, 1929 सं. 39] No. 39 ]

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 ।। खण्ड 3 - उप - खण्ड (ii) PART II-Section 3 Sub- section (ii)

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

MINISTRY OF PERSONNEL, PUBLIC GRIEVANCES AND PENSIONS

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

(Department of Personnel and Training) नई दिल्ली, 20 सितम्बर , 2007

New Delhi , the 20th September, 2007

S.O. 2753.- In exercise of the powers conferred by sub-section ( 1 ) of Section 5 read with Section 6 ofthe Delhi Special Police Establishment Act , 1946 (Act No. 25 of 1946) , the Central Government with the consent of State Government ofAndhra Pradesh , Home (S.C.A. ) Department vide Notification No. G.O. Ms. No. 149, dated 2nd July, 2007, hereby extends the powers and jurisdiction of the members ofthe Delhi Special Police Establishment to the whole of the State of Andhra Pradesh for the investigation. into the case of Macca Masjid Bomb Explosion occurred . on 18-5-2007 in Cr . No. 107/07 u/s 120 - B IPC, Sections 4 and 5 of Explosive Substances Act and Sections 10 and 12 of Unlawful Activities (Prevention ) Act, 1967 read with 511 IPC registered by Hussaini Alam Police Station of Hyderabad City and attempts, abetments and conspiracies in relation to or in connection with the said transactions and other transactions committed in the course of the same transaction or arising out of the same fact or facts .

का.आ. 2753. केंद्रीय सरकार, एतद्वारा दिल्ली विशेष पुलिस स्थापना अधिनियम , 1946 ( 1946का अधिनियम सं. 25 ) की धारा 6 के साथ पठित धारा 5 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए आंध्र प्रदेश राज्य सरकार , गृह (एस.सी.ए. ) विभाग के दिनांक 2 जुलाई , 2007 की अधिसूचना सं. जीओएमएस नं. 149 द्वारा प्राप्त सहमति से दिनांक 18-5-2007 को हुए मक्का मस्जिददम विस्फोट के मामले में हुसैनी आलम पुलिस स्टेशन , हैदराबाद सिटी द्वारा भारतीय दंड संहिता की धारा 120 बी, विस्फोटक पदार्थ अधि- नियम की धारा 4 और 5 और विधिविरुद्ध क्रियाकलाप ( निवारण) अधिनियम , 1967 की धारा 10 और 12 , सपठित धारा 511 भारतीय दंड संहिता के अधीन दर्ज मामला सं. 107/07 तथा उपर्युक्त अपराध सेसंबंधित अथवा संसक्त प्रयत्नों, दुष्प्रेरणों और षड़यंत्रों तथा उसी संत्र्यवहार के अनुक्रम में किए गए अथवा उन्हीं तथ्यों से उद्भूत किन्हीं अन्य अपराधों का अन्वेषण करने के लिए दिल्ली विशेष पुलिस स्थापना के सदस्यों की शक्तियों और अधिकारिता का विस्तार सम्पूर्ण आंध्र प्रदेश राज्य पर करती है ।

[No. 228 /32/2007 - AVD - JI] CHANDRA PRAKASH, Under Secy .

[सं 228/32/2007-एवीडी- II ] चंद्र प्रकाश, अवर सचिव

(7939)

3855GI/2007 7940

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

नई दिल्ली, 20 सितम्बर, 2007

का.आ. 2754.-केंद्रीय सरकार, एतद्वारा दिल्ली विशेष पुलिस स्थापना अधिनियम, 1946 ( 1946 का अधिनियम सं. 25 ) की धारा 6 के साथ पठित धारा 5 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मेघालय राज्य सरकार के राजनीति विभाग की अधिसूचना ज्ञापन सं. पोल. , 93/2007/14 ए. दिनांक, शिलांग 1 मई, 2007 द्वारा प्राप्त सहमति से लुम्डिगंगीरी पुलिस स्टेशन शिलांग , मेघालय में पंजीकृत मामला सं. 96 ( 8 )/2006 में भारतीय दंड संहिता की धारा 364 ( ए) /34 के अधीन दंडनीय अपराधों तथा उक्त अपराध से संबंधित अथवा संसक्त प्रयत्न, दुष्प्रेरण और षड़यंत्र तथा उसी संव्यवहार के अनुक्रम में किए गए अथवा उन्हीं तथ्यों से उदभूत किसी अन्य अपराधों का अन्वेषण करने के लिए दिल्ली विशेष पुलिस स्थापना के सदस्यों की शक्तियों और अधिकारिता का विस्तार सम्पूर्ण मेघालय राज्य पर करती है ।

[सं. 228/28/2007-एवीडी- II ]

चंद्र प्रकाश , अवर सचिव NewDelhi , the 20th September 2007 S.O. 2754. In exercise of the powers conferred by sub -section ( 1 ) of Section 5 read with Section 6 of the Delhi SpecialPolice Establishment Act, 1946 (Act No. 25 of 1946 ) , the Central Government with the consent of State Government of Meghalaya vide Political Department NotificationMemo No. POL . 93/2007/ 14- A dated, Shillong, the 1st May, 2007 , hereby extends the powers and jurisdiction of the members of the Delhi Special Police Establishment to the whole of the State of Meghalaya for investigation of offences punishable under section 364 (a)/ 34 IPC, arising out of case No. 96( 8 )/2006 registered at Lumdiengiri Police Station Shillong, Meghalaya and Attempt, abetment and conspiracy in relation, to or in connectionwith the said offences , and any other offences committed in the course of the same transaction or arising out of the same facts .

[No. 228 /28/2007-AVD- II ]

CHANDRA PRAKASH, Under Secy.

नई दिल्ली , 20 सितम्बर, 2007

का.आ. 2755. केंद्रीय सरकार, एतद्वारा दिल्ली विशेष पुलिस स्थापना अधिनियम, 1946 ( 1946 काअधिनियम सं. 25 ) की धारा 6के साथ पठित धारा 5 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए कर्नाटक राज्य सरकार की अधिसूचना सं. एचडी 91/पीसीआर 2006, दिनांक 22 जून, 2006 और तमिलनाडु राज्य सरकार की अधिसूचना सं. जी.ओ. एमएस. सं. 1257, दिनांक 29-12-2006 द्वारा प्राप्त सहमति से श्री पी. एम. सुंदरम , मैसर्स फैशन सिकोटैक्स प्रा. लि. के चेयरमैन एंड मैनेजिंग डायरेक्टर , श्री एस. रमेश , मैसर्स फैशन सिकोटेक्स प्रा. लि. के गारन्टर और अन्य अज्ञात व्यक्तियों एवं किन्हीं अन्य लोकसेवकों अथवा व्यक्तियों के विरुद्ध जुलाई , 1999 , मार्च, 2002 की अवधि के दौरान स्टेट बैंक ऑफ इंडिया, वाणिज्यिक शाखा, कोयम्बटूर को कपटपूर्ण ढंग से 853 लाख रुपए से अधिक की अनुचित हानि पहुंचाने के लिए भारतीय दंड संहिता की धारा 120 बी सपठित धारा 420, 465, 467, 468 और 471 के अधीन दंडनीय अपराधों तथा तत्संबंधी सारभूत अपराध और उक्त अपराधों से संबंधित तथा उसी संव्यवहार के अनुक्रम में

[PART II-SEC . 3 ( ii ) ] किए गए अथवा उन्हीं तथ्यों से उद्भूत किसी अन्य अपराध अथवा उपराधों का अन्वेषण करने के लिए दिल्ली विशेष पुलिस स्थापना के सदस्यों की शक्तियों और अधिकारिता का विस्तार सम्पूर्ण कर्नाटक और तमिलनाडु राज्य पर करती है।

[सं. 228/37/2006- एवीडी- II ]

चंद्र प्रकाश, अवर सचिव New Delhi , the 20th September, 2007 S.O. 2755.- In exercise of the powers conferred by Sub -seciton ( 1 ) of Section 5 read with section 6 ofthe Delhi Special Police Establishment Act, 1946 (Act No. 25 of 1946) the Central Government with the consent of State Government of Karnataka vide notification No. HD 91 / PCR 2006, dated 22nd June 2006 and State Government of Tamil Nadu vide notification No. G.O. Ms. No. 1257, dated 29-12-2006 hereby extends the powers and jurisdiction of the members ofthe Delhi Special Police Establishment to the whole of the States of Karnataka and Tamil Nadu for investigation of offences punishable under Section 120- B r/w420, 465, 467, 468 and 471 IPC and substantive offences thereof against Shri P.M. Sundaram, Chairman and Managing Director of M/ s . Fashion Syncotex Pvt . Ltd. , Shri S. Ramesh, Guarantor of M/ s . Fashion Syncotex Pvt . Ltd. , and unknown others for fraudulently causing a wrongful loss of more than Rs . 853 lakhs to State Bank of India, Commercial Branch , Coimbatore during the period July, 1999-March, 2002, and any other public servants or persons, in relation, to or in connection with the said offences, and any other offences committed in the course ofthe same transaction or arising out of the same facts.

[No. 228/37/2006-AVD- II ] CHANDRA PRAKASH, Under Secy.

वित्त मंत्रालय (वित्तीय सेवाएं विभाग )

नई दिल्ली, 18 सितम्बर, 2007

का.आ. 2756. बैंककारी विनियमन अधिनियम, 1949 ( 1949 का 10 ) की धारा 53 द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, भारत सरकार, भारतीय रिजर्व बैंक की सिफारिश पर, एतद्वारा घोषणा करती है कि उक्त अधिनियम की धारा 19 (2 ) के उपबंध बैंक ऑफ बड़ौदा पर उस सीमा तक लागू नहीं होंगे , जहां तक उनका संबंध " बॉब म्युचुअल फंड " के विद्यमान न्यासी मंडल को प्रतिस्थापित करने के लिए कम्पनी अधिनियम , 1956 के अधीन गठित की जाने वाली न्यासी कम्पनी की इक्विटी शेयर के 30 प्रतिशत 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 )

New Delhi , the 18th September , 2007

S.O. 2756. In exercise of the powers conferred by Section 53 of the Banking Regulation Act, 1949 ( 10 of1949), the Government of India, on the recommendations of Reserve Bank of India , hereby declares that the provisions ofSection 19(2 ) of the said Act shall not apply to Bank of 7941 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii) ]

the age of superannuation i.e. 28-2-2010 or until his successor isduly appointed or till he ceases to be a workman employec ofDena Bank or until further orders , whichever is earlier .

Baroda in so far as it holds more than 30 % shares in the equity of the Trustee Company to be formed under the Companies Act, 1956 for replacing the present Board of Trustees of "BOB Mutual Fund" .

[F. No. 15/6/2006 - IR] RAJINDER SOOD, Under Secy.

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

( आर्थिक कार्य विभाग )

D.P. BHARDWAJ , Under Secy.

(बैंकिंग प्रभाग)

नई दिल्ली , 19 सितम्बर, 2007

नई दिल्ली, 19 सितम्बर , 2007

का.आ. 2759.-भारतीय निर्यात-आयात बैंक अधिनियम, 1981 ( 1981 का 28 ) की धारा 6 की उप - धारा ( 1 ) के खण्ड (ङ) के उप - खण्ड (झ ) के अनुसरण में, केन्द्रीय सरकार , एतद्वारा श्री अरविन्दविरमानी , मुख्य आर्थिक सलाहकार , आर्थिक कार्य विभाग , वित्त मंत्रालय , नई दिल्ली को श्री अशोक के. लाहिड़ी के स्थान पर भारतीय निर्यात- आयात बैंक के निदेशक बोर्ड में निदेशक के रूप में नामित करती है।

का.आ. 2757.-वित्तीय आस्तियों का प्रतिभूतिकरण एवं पुनर्गठन तथा प्रतिभूति हित का प्रवर्तन अधिनियम , 2002 ( 2002 का 54) की धारा 2 की उप- धारा ( 1 ) के खण्ड (ड) के उप- खण्ड (iv ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्र सरकार , एतद्वारा " इंडियाबुल्स हाऊसिंग फाइनेंस लिमिटेड " , जिसका पंजीकृत कार्यालय एफ-60 , मल्होत्रा भवन , द्वितीय तल , कनॉट प्लेस , नई दिल्ली -110001 में है , को उक्त अधिनियम के प्रयोजनों के लिए " वित्तीय संस्था " के रूप में विनिर्दिष्ट करती है ।

[फा. सं. 1/1/2006- बीओ-1 ]

[फा. सं. 24/27/2001- आईएफ -1 ] एम. साहू, अवर सचिव

(Department ofEconomic Affairs) (Banking Division) New Delhi , the 19th September , 2007

New Delhi , the 19th September, 2007 S.O. 2759. In pursuance of sub-clause (i ) of clause (e) of Sub -section ( 1 ) of Section 6 of the Export Import Bank of India Act, 1981. (28 of 1981 ), Central Government hereby nominates Shri Arvind Virmani , Chief Economic Adviser , Department of Economic Affairs , Minsitry of Finance , New Delhi as a Director on the Board of Directors ofExport Import Bank of India vice Shri Ashok K. Lahiri . [F. No. 24/27/2001 - IF- 1 ] जी. बी. सिंह, उप सचिव S.O. 2757. In exercise of the powers conferred by sub-clause (iv) of clause ( m) of Sub- section (1 ) of Section 2 of the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act , 2002 (54 of 2002) , the Central Government hereby specifies the "Indiabulls Housing Finance Ltd. ", having its registered office at F -60 , Malhotra Building , IInd Floor , Connaught Place, New Delhi - 110001 as ' financial institution' for the purposes of the said Act .

M. SAHU , Under Secy .

(राजस्व विभाग )

[F. No. 1/1 /2006-BO -1 ] GB . SINGH , Dy . Secy .

नई दिल्ली , 20 सितम्बर , 2007 नई दिल्ली, 19 सितम्बर , 2007

का.आ. 2760, केन्द्रीय सरकार , राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम , 1976 के नियम 10 के उपनियम (4 ) के अनुसरण में राजस्व विभाग के अधीन केन्द्रीय उत्पाद एवं सीमा शुल्क बोर्ड के निम्नलिखित क्षेत्रीय कार्यालयों को, जिनके 80 प्रतिशत कर्मचारीवृंद ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , अधिसूचित करती है

1. प्रचार एवं जनसंपर्क निदेशालय , नई दिल्ली ।

2. मुख्य आयुक्त का कार्यालय , केन्द्रीय उत्पाद शुल्क, सीमा शुल्क एवं सेवाकर , लखनऊ ।

3. आयुक्त का कार्यालय , केन्द्रीय उत्पाद शुल्क , सीमा शुल्क एवं सेवाकर , लखनऊ ।

का.आ. 2758.- राष्ट्रीयकृत बैंक ( प्रबन्ध एवं प्रकीर्ण उपबंध ) स्कीम, 1970 के खण्ड 9 के उप- खण्ड ( 2 ) ( क ) के साथ पठित बैंककारी कंपनी ( उपक्रमों का अर्जन एवं अंतरण ) अधिनियम , 1970 की धारा 9 की उप- धारा (3 ) के खण्ड (ङ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्रीय सरकार , एतद्वारा श्री मधुकरराव जी. शिंदे, विशेष सहायक , देना बैंक , हमीदिया रोड , भोपाल को देना बैंक के निदेशक बोर्ड में कर्मकार कर्मचारी निदेशक के रूप में नियुक्त करती है। वे अपनी नियुक्ति की तारीख से अधिवर्षिता कीआयु अर्थात्28-2-2010 तक या उनके उत्तराधिकारी की विधिवत नियुक्तिहोने तक या उनके देना बैंक के कर्मकार कर्मचारी बने रहने तक या अगला आदेश होने तक, जो भी पहले हो , इस पद पर बने रहेंगे ।

4. केन्द्रीय उत्पाद शुल्क , सीमा शुल्क एवं सेवाकर मंडल कार्यालय प्रथम , लखनऊ ।

[फा. सं. 15/6/2006- आईआर ]

5. केन्द्रीय उत्पाद शुल्क , सीमा शुल्क एवं सेवाकर मंडल कार्यालय द्वितीय , लखनऊ ।

राजेन्द्र सूद , अवर सचिव

New Delhi , the 19th September, 2007

6. केन्द्रीय उत्पाद शुल्क , सीमा शुल्क एवं सेवाकर मंडल कार्यालय , रायबरेली ।

7. केन्द्रीय उत्पाद शुल्क , सीमा शुल्क एवं सेवाक्क्रूर मंडल कार्यालय , सीतापुर ।

8. केन्द्रीय उत्पाद शुल्क , सीमा शुल्क एवं सेवाकर मंडल कार्यालय , फर्रुखाबादः ।

9. केन्द्रीय उत्पाद शुल्क, सीमा शुल्क एवं सेवाकर मंडल कार्यालय , अलीगढ़ ।

[फा. सं. 11013 (01 ) 2005 - हिन्दी-2 ] मधु शर्मा , निदेशक ( रा.भा. ) S.O. 2758.-In exercise of the powers conferred by clause (e) of the Sub- section (3 ) of Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings )Act, 1970 read with Sub- clause (2) ( a ) of Clause 9 of the Nationalized Banks (Management and Miscellaneous Provisions) Scheme, 1970, the Central Government hereby appoints Shri Madhukarroa G. Shinde, Special Assistant Dena Bank, Hamidia Road , Bhopal as Workmen Exployee Director on the Board of Directors of Dena Bank. He will hold office from the date of his appointment till he attains 7942

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ ASVINA 7, 1929

(Department of Revenue) New Delhi , the 20th September, 2007 S.O. 2760. -In pursuance of sub- rule (4) of rule 10 of the Official Language ( Use for Official purposes of the Union) Rules, 1976 the Central Government hereby notifies the following offices under the Central Board of Excise & Customs, Department of Revenue , the 80% staff whereof have acquired the working knowl- edge of Hindi.

1. Directorate of Publicity and Public Relations , NewDelhi .

2. Office of the Chief Commissioner, Central Ex- cise, Customs & Service Tax, Lucknow.

3. Office of the Commissioner, Central Excise , Customs & Service Tax, Lucknow.

4. Central Excise, Customs & Service Tax, Division Office- I, Lucknow.

5. Central Excise , Customs & Service Tax , Division Office- II, Lucknow.

6. Central Excise , Customs & Service Tax, Division Office, Raebarelly.

7. Central Excise, Customs & Service Tax, Division Office, Sitapur.

8..Central Excise, Customs & Service Tax, Division Office, Farrukhabad.

9. Central Excise, Customs & Service Tax, Division Office, Aligarh .

[F. No. 11013(01)2005 -Hindi -2] MADHU SHARMA, Director (OL) वाणिज्य और उद्योग मंत्रालय (वाणिज्य विभाग)

नई दिल्ली, 13 सितम्बर, 2007

का.आ. 2761. केन्द्रीय सरकार , निर्यात ( क्वालिटी नियंत्रण और निरीक्षण ) अधिनियम, 1963 ( 1963 का 22 ) की धारा 7 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, और निर्यात (क्वालिटी नियंत्रण और निरीक्षण ) नियम, 1964 के नियम 12 के उपनियम ( 2 ) के अनुसरण में मैसर्स कल्याणी लेबोरेट्रीज , बोमीखल, प्लॉट नं. 1867, दुर्गा मंडप के निकट, भुवनेश्वर-751010, उड़ीसा, राजपत्र में इस अधिसूचना के प्रकाशन की तारीख से तीन वर्ष की अवधि के लिए भारत सरकार के वाणिज्य मंत्रालय की अधिसूचना सं. का.आ. 3975 तारीख 20 दिसम्बर , 1965 से उपाबद्ध अनुसूची में यथाविनिर्दिष्ट खनिज और अयस्क समूह- I अर्थात् लोह अयस्क तथा मैंगनीज अयस्क का निर्यात से पूर्व निम्नलिखित शर्तों के अधीन उक्त खनिजों और अयस्कों का

[PART II-SEC. 3 ( ii ) ] भुवनेश्वर में निरीक्षण करने के लिए एक अभिकरण के रूप में मान्यता देती है , अर्थात्ः-

( i ) मैसर्स कल्याणी लेबोरेट्रीज, भुवनेश्वर खनिज और अयस्क समूह -1 निर्यात ( निरीक्षण ) नियम , 1965 के नियम 4 के अधीन निरीक्षण का प्रमाण- पत्र देने के लिए उनके द्वारा अपनाई गई निरीक्षण पद्धति की जांच करने के लिए, इस निमित्त निर्यात निरीक्षण परिषद् द्वारा नामनिर्दिष्ट अधिकारियों को पर्याप्त सुविधाएं देगी,

( ii ) मैसर्स कल्याणी लेबोरेट्रीज , भुवनेश्वर इस अधिसूचना के अधीन अपने कृत्यों के पालन में निदेशक ( निरीक्षण एवं क्वालिटी नियंत्रण ) , निर्यात निरीक्षण परिषद् द्वारा समय- समय पर लिखित में दिए गए निर्देशों से आबद्ध होंगे । [फाईल सं. 5/9/2007- ईआई एंड ईपी ] वी.के. गाबा, उप सचिव MINISTRY OF COMMERCE AND INDUSTRY (Department of Commerce)

New Delhi, the 13th September, 2007

S.O. 2761.- In exercise of the powers conferred by the sub - section ( 1) of Section 7 of the Export (Quality Control and Inspection) Act, 1963 (22 of 1963 ), and in pursuance of sub - rule (2) of rule 12 of the Export (Quality Control and Inspection ) Rule, 1964, the Central Govern- ment hereby recognises M/ s . Kalyani Laboratories , Bomikhal, Plot No. 1867, Near Durga Mandap , Bhubaneswar- 751010, Orissa, as an agency for a period of three years with effect from the date of publication of this notification in the Official Gazette , for inspection of Minerals and Ores ( Group - 1) , namely, Iron Ore & Man- ganese Ore, as specified in the Schedule annexed to the notification of the Government of India in the Ministry ofCommerce number S.O. 3975 dated the 20th December , 1965, prior to the export, of the said Minerals and Ores atBhubaneswar subject to the following conditions , namely :-

(i) that M/s . Kalyani Laboratories, Bhubaneswar shall give adequate facilities to the officers nominated by the Export Inspection Council in this behalf to examine the method of inspection followed by them in granting the certificate of inspection under rule 4 of the Export of Miner- als and Ores Group - I ( Inspection) Rules , 1965;

(ii) that M/s. Kalyani Laboratories, Bhubaneswar in the performance of their function under this notification shall be bound by such directives as the Director ( Inspection and Quality Con- trol), Export Inspection Council may give, in writing, from time to time .

[File No. 5/9/2007 - EI & EP ] V. K. GAUBA, Dy. Secy.

7943.

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii ) ]

नई दिल्ली , 13 सितम्बर , 2007

(ii) that M/s . Mitra S.K. Private Ltd. , Mangalore in the performance of their function under this notification shall be bound by suchdi- rectives as the Director ( Inspection and Quality Control) , Export Inspection Council may give, in writing, from time to time.

[F. No. 5/10/2007 -EI & EP ] V. K. GAUBA , Dy. Secy .

नई दिल्ली 13 सितम्बर , 2007 का.आ. 2762 केन्द्रीय सरकार , निर्यात ( क्वालिटी नियंत्रण और निरीक्षण ) अधिनियम, 1963 ( 1963 का 22 ) की धारा 7 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, और निर्यात ( क्वालिटी नियंत्रण और निरीक्षण ) नियम, 1964 के नियम 12 के उप-नियम (2 ) के अनुसरण में मैसर्स मित्रा एस. के. प्राइवेट लि. एमडीएल यार्ड , एनएमपीटी , पेराम्बूर , मैंगलौर-575010 को, राजपत्र में इस अधिसूचना के प्रकाशन की तारीख से तीन वर्ष की अवधि के लिए भारत सरकार के वाणिज्य मंत्रालय की अधि- सूचना सं. का.आ. 3975 तारीख 20 दिसम्बर , 1965 से उपाबद्ध अनुसूची में यथाविनिर्दिष्ट खनिज और अयस्क समूह-1 अर्थात् लोह अयस्क का निर्यात से पूर्व निम्नलिखित शर्तों के अधीन उक्त खनिजों और अयस्कों का मैंगलौर में निरीक्षण करने के लिए एक अभिकरण के रूप में मान्यता देती है, अर्थात्:-

( i ) मैसर्स मित्रा एस. के. प्राइवेट लि. , मैंगलोर खनिज और अयस्क समूहू 1 निर्यात ( निरीक्षण ) नियम , 1965 के नियम 4 के अधीन निरीक्षण का प्रमाण-पत्र देने के लिए उनके द्वारा अपनाई गई निरीक्षण पद्धति की जांच करने के लिए , इस निमित्त निर्यात निरीक्षण परिषद् द्वारा नामनिर्दिष्ट अधिकारियों को पर्याप्त सुविधाएं देगी ,

(ii) मैसर्स मित्रा एस . के. प्राइवेट लि. ,मैंगलौर इस अधिसूचना के अधीन अपने कृत्यों के पालन में निदेशक ( निरीक्षण एवं क्वालिटी नियंत्रण ) , निर्यात निरीक्षण परिषद् द्वारा समय- समय पर लिखित में दिए गए निर्देशों से आबद्ध होंगे ।

का.आ. 2763-केन्द्रीय सरकार , निर्यात ( क्वालिटी नियंत्रण और निरीक्षण ) अधिनियम, 1963 ( 1963 का 22 ) की धारा 7 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , और निर्यात (क्वालिटी नियंत्रण और निरीक्षण ) नियम, 1964 के नियम 12 के उप-नियम ( 2 ) के अनुसरण में मैसर्स इन्सपेक्टोरेट ग्रीफ्थ इंडिया प्राइवेट लि. ' 488 ' खजानचक , प्रथम तल , हाल्दिया-721 602 , जिला मिदनापुर , पश्चिम बंगाल को राजपत्र में इस अधिसूचना के प्रकाशन की तारीख से तीन वर्ष की अवधि के लिए भारत सरकार के वाणिज्य मंत्रालय की अधिसूचना सं. का.आ. 3975 तारीख 20 दिसम्बर , 1965 और का.आ 3978 तारीख 20 दिसम्बर , 1965 के साथ उपाबद्ध अनुसूची में यथाविनिर्दिष्ट खनिज और अयस्क ( समूह -1 ) अर्थात् लौह अयस्क मैंगनीज अयस्क, फैरो मैंगनीज , फैरो मैंगनीज स्लेग , सहित बॉक्साईट जिसके अंतर्गत केलसिंड बॉक्साईट भी हैं, और ( समूह- II ) अर्थात् मैगनीज डाइआक्साइड , क्रोम अयस्क जिसके अंतर्गत क्रोम तत्व भी हैं का निर्यात से पूर्व निम्नलिखित शर्तों के अधीन हाल्दिया में उक्त खनिजों और अयस्कों का निरीक्षण करने के लिए एक अभिकरण के रूप में मान्यता देती है, अर्थात्:-

[फा. सं. 5/10/2007- ईआई एंड ईपी ]

वी.के. गाबा , उपसचिव

New Delhi , the 13th September , 2007

( i ) मैसर्स इन्सपेक्टोरेट ग्रीफ्थ इंडिया प्राइवेट लि. , हाल्दिया खनिज और अयस्क समूह 1 का निर्यात ( निरीक्षण ) नियम, 1965 तथा खनिज और अयस्क समूह- II निर्यात (निरीक्षण) नियम , 1965 के नियम 4 के अधीन निरीक्षण का प्रमाण-पत्र देने के लिए उनके द्वारा अपनाई गई निरीक्षण की पद्धति की जांच करने के लिए, इस निमित्त निर्यात निरीक्षण परिषद् द्वारा नामनिर्दिष्ट अधिकारियों को पर्याप्त सुविधाएं देगी ,

(ii ) मैसर्स इन्सपेक्टोरेट ग्रीफ्थ इंडिया प्राइवेट लि. , हाल्दिया इस अधिसूचना के अधीन अपने कृत्यों के पालन में निदेशक ( निरीक्षण और क्वालिटी नियंत्रण ) , निर्यात निरीक्षण परिषद् द्वारा समय - समय पर लिखित में दिए गए निर्देशों से आबद्ध होंगे ।

[फा. सं. 5/ 11/2007- ईआई एंड ईपी ] वी.के. गाबा, उपसचिव S.O. 2762- In exercise of the powers conferred by sub -section (1 ) of Section 7 of the Export (Quality Control and Inspection) Act, 1963 (22 of 1963 ) , and in pursuance of sub - rule (2) of rule 12 of the Export (Quality Control and Inspection) Rule , 1964, the Central Government hereby recognises M/s . Mitra S.K. Private Ltd. , MDL Yard , NMPT, Perambur, Mangalore -575 010, as an agency for a period of three years with effect from the date of publication of this notification in the Official Gazette , for inspection of Minerals and Ores ( Group - I) , namely , Iron Ore as specified in the Schedule annexed to the notification of the Govern- ment of India in the Ministry of Commerce number S.O. 3975 dated the 20th December , 1965, prior to the export , ofthe said Minerals and Ores at Mangalore , subject to the following conditions , namely : -

New Delhi , the 13th September , 2007

S.O. 2763-In exercise of the powers conferred bythe sub- section (1) of Section 7 of the Export (Quality Control and Inspection) Act , 1963 (22 of 1963 ) , and in pursuance of sub -rule (2) of rule 12 of the Export (Quality Control and Inspection ) Rule, 1964 , the Central Govern- ment hereby recognises M/ s Inspectorate Griffith' India (i) that M/s . Mitra S.K. Private Ltd. , Mangalore shall give adequate facilities to the officers nominated by the Export Inspection Council in this behalf to examine the method of in- spection followed by them in granting the certificate of inspection under rule 4 of the Export of Minerals and Ores-Group I ( Inspec- tion) Rules , 1965;

7944

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7, 1929

[PART II-SEC. 3 (ii) ]

Haldia shall give adequate facilities to the officers nominated by the Export Inspection Council in this behalf to examine the method of inspection followed by them in granting the certificate of inspection under rule 4 of the Export of Minerals and Ores- Group I ( Inspec- tion) Rules, 1965 and the export of Minerals and Ores-Group II ( Inspection ) Rules, 1965;

Pvt. Ltd. , 488, Khajanchak, 1st Floor, Haldia- 721 602, Dist . Midnapore, West Bengal , as an agency for a period of three years with effect from the date of publication of this notification in the Official Gazette , for inspection of Minerals and Ores ( Group - I ) , namely, Iron Ore Manga- nese Ore, Ferro Manganese including Ferro manganese slag, Bauxite including Calcined Bauxite ; and (Group - II ) , namely , Manganese Dioxide, Chrome Ore including Chrome concentrates, as specified in the Schedules annexed to the notifications of the Government of India in the Ministry of Commerce numbers S.O. 3975 dated , the 20th December, 1965 and S. O. 3978 dated the 20th December, 1965, prior to the export, of the said Minerals and Ores at Haldia , subjectto the following conditions , namely:-

(ii) that M/s . Inspectorate Griffith India Pvt . Ltd. , Haldia in the performance of their function under this notification shall be bound by such directives as the Director ( Inspection and Quality Control) , Export Inspection Council may give , in writing, from timeto time.

(i) that M/s . Inspectorate Griffith India Pvt. Ltd. ,

[F. No. 5/11/2007 -ΕΙ& ΕΡ] V.K. GAUBA, Dy. Secy.

विद्युत मंत्रालय,

नई, दिल्ली 12 सितम्बर, 2007

का.आ. 2764. केन्द्रीय सरकार , सरकारी स्थान ( अप्राधिकृत अधिभोगियों की बेदखली ) अधिनियम , 1971 ( 1971 का 40 ) की धारा 3 द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , भारत सरकार के विद्युत मंत्रालय , की अधिसूचना सं.का.आ. 1250 तारीख 27-4-2007 जो भारत के राजपत्र में 29 मई , 2004 को प्रकाशित हुई थी, को अधिक्रांत करते हुए नीचे की सारणी के स्तंभ ( 1 ) में उल्लिखित नेशनल हाइड्रो इलैक्ट्रिक पावर कार्पोरेशन लिमिटेड ( एनएचपीसी ) के अधिकारी को , जो सरकार के राजपत्रित अधिकारी के समतुल्य पंक्तिके अधिकारी हैं, उक्त अधिनियम के प्रयोजनों के लिए संपदा अधिकारी नियुक्त करती है जो उक्त सारणी के स्तंभ ( 2 ) में विनिर्दिष्ट अपनी अधिकारिता की सीमा में उसके स्तंभ (4 ) में विनिर्दिष्ट सरकारी स्थानों की प्रवर्गों के बाबत; उक्त अधिनियम द्वारा या उसके संपदा अधिकारी को प्रदत्त शक्तियों का प्रयोग करेगा और अधिरोपित कर्तव्यों का पालन करेगा ।

सारणी

अधिकारी का पद नाम अधिकारिता की स्थानीय सीमाएं ग्राम और तहसील का नाम सरकारी स्थानों के प्रवर्ग ज्येष्ठ प्रबंधक प्रबंधक ( सिविल ) सिम्बल्यू, खैरी, संजपाई, बग्गी, संजप , जंदरेरा , शेरपुर, ओरूमोड़ , चांवड़ा, छैनामोड़ , गांधीयार, देवीदेहरा , बाँखरी मोड़ बनीखेत, डलहौजी, संडला और सभी अन्य परियोजना क्षेत्र ।

चामेरा जिले की दोनों तहसीलों के अंतर्गत आने वाले परियोजना क्षेत्र; ( 1 ) ग्राम सिम्बल्यू: डाकखाना खैरी , तहसील डलहौजी जिला चंबा ( हिमाचल प्रदेश ) (2 ) तहसील-सलूनी जिला-चंबा ( हिमाचल प्रदेश )

हिमाचल प्रदेश राज्य में जिला चंबा के खैरी स्थित चामेरा पावर स्टेशन स्टेज -1 के परिसर जिसके अंतर्गत सिकवारू/सुविधा गैर आवासीय/ सुविधा/ भवन या दुकान या भंडार सड़कें या संरचनाएं पावर हाउस के संस्थान; बांध , सर्ज शाफ्ट , टेल रेस सुरंग आदि भी हैं ।

[फा. सं. 16/16/97-डी.ओ. ( एनएचपीसी ) ]

संजय चड्ढा , निदेशक

MINISTRY OF POWER

New Delhi , the 12th September, 2007

S.O. 2764.-In exercise of the power conferred by the Section 3 of the Public Premises (Eviction of Unauthorised Occupants) Act, 1971 (40 of 1971 ) , and in supersession of the notification of Government of India in the Ministry of Power, number S.O. 1250 dated 27-4-2007 published in the Gazette of India dated 29th May , 2004 , the Central Govern- ment hereby appoints the officer of National Hydro -electric Power Corporation Ltd. ( NHPC) mentioned in column ( 1) of the Table below, being officer equivalent to the rank of Gazetted Officer of the Government , to be Estate Officer for the purpose of the said Act who shall exercise the power conferred and perform the duties imposed on Estate Officers by or under said Act, within the limit of his jurisdiction specified in column (2) of the said Table in respect of categories of public premises specified in column (4) thereof.

7945 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 ( ii) ]

TABLE

Local Limits of Jurisdiction

Categories of public premises

Name of Village, Tehsil , District

Designation of the Officer

Simbule , Khairi , Sanjpoi,

Senior Manager /Manager (Civil)

Baggi, Sanjp, Jandrera, Sherpur , Orumorh , Chowrah , Chhana- morh, Gandhiar, Devidehra , Bonkhrimorh, Banikhet , Dalhousie , Sundla and all other project area .

Project areas falls in Two Tehsils of Chamera District ; (1 ) Village Simbleu , P.O. Khairi, Tehsil Dalhousie, District Chamba (Himachal Pradesh) (2) Tehsil Salooni , District Chamba (Himachal Pradesh)

Premises including resi- dential /non- residential accommodation/buildings or shops or stores/roads or structures installations of Power House , Dam, Surge Shaft, Tail Race Tunnel etc. belonging to Chamera Power Station Stage - 1, Khairi , District- Chamba in Himachal Pradesh State .

[File. No. 16/16/97 - DO (NHPC) ] SANJAY CHADHA, Director सांख्यिकी और कार्यक्रम कार्यान्वयन मंत्रालय नई दिल्ली, 17 सितम्बर , 2007

द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्र सरकार निम्नलिखित व्यक्तियों को तत्काल प्रभाव से दो वर्षों की अवधि के लिए या अगले आदेशों तक , जो भी पहले हो, केंद्रीय फिल्म प्रमाणन बोर्ड के बंगलौर सलाहकार पैनल के सदस्यों के रूप में नियुक्त करती है:

( 1 ) श्री के. बी. लिंगराज

(2) श्री वी. के. उर्स

(3) श्री के. ए. वैद्यनाथ

(4) श्री जी. दयानंदा

का.आ. 2765. केन्द्रीय सरकार , राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम , 1976 के नियम 10 के उप- नियम ( 4 ) के अनुसरण में , सांख्यिकी और कार्यक्रम कार्यान्वयन मंत्रालय के निम्नलिखित कार्यालय को , जिसके 80 प्रतिशत कर्मचारियों ने हिंदी का कार्यसाधक ज्ञान प्राप्त कर लिया है, भारत के राजपत्र में अधिसूचित करती है:-

[फा. सं. 809/5/2007- एफ ( सी) ] संगीता सिंह , निदेशक ( फिल्म) सर्वेक्षण अभिकल्प एवं अनुसंधान प्रभाग , राष्ट्रीय प्रतिदर्श सर्वेक्षण संगठन , कोलकाता ।

MINISTRY OF INFORMATION AND BROADCASTING

New Delhi , the 20th July , 2007 [संख्या ई -11011/2/2006 - हिंदी ] अरुण कुमार सक्सेना , संयुक्त सचिव

MINISTRY OF STATISTICS AND PROGRAMME IMPLEMENTATION

New Delhi , the 17th September , 2007

S.O. 2766. In continuation of this Ministry's Notification of even number dated 11th July, 2007 and in exercise of the powers conferred by sub- section ( 1 ) of Section 5 of the Cinematograph Act, 1952 (37 of 1952) read with rules 7 and 8 of the Cinematograph ( Certification) Rules, 1983 the Central Government is pleased to appoint the following as members of the Bangalore Advisory Panel of the Central Board of Film Certification with immediate effect for a period of two years or until further orders , whichever is earlier :

(1) Shri K. B. Lingraj

(2) Shri V. K. Urs

S.O. 2765.- In pursuance of sub- rule (4) of Rule 10 of the Official Language ( use for official purposes of the Union) Rules , 1976, the Central Government hereby notify the following office of the Ministry of Statistics and Programme Implementation in the Gazette of India where 80 per cent of the staff has acquired the working knowledge of Hindi .

(3) Shri K. N. Vaidyanath

(4) Shri G. Dayananda

Survey, Design and Research Division , National Sample Survey Organisation , Kolkata .

[No. E- 11011/ 2/2006-Hindi ] A. K. SAXENA, Jt . Secy .

[F. No. 809 /5 /2007 -F (C) ] SANGEETA SINGH , Director (Films )

नई दिल्ली, 22 अगस्त, 2007 सूचना और प्रसारण मंत्रालय नई दिल्ली, 20 जुलाई , 2007.

का.आ. 2767. इस मंत्रालय की दिनांक 15-06-2005 की समसंख्यक अधिसूचना के अनुक्रम में और चलचित्र ( प्रमाणन ) नियमावली, 1983 के नियम 7 और 8 के साथ पठित चलचित्र अधिनियम, 1952 ( 1952 का 37 ) की धारा 5 की उप - धारा ( 1 ) का, आ. 2766.- इस मंत्रालय के दिनांक 11 जुलाई , 2007 कीसमसंख्यक अधिसूचना के अनुक्रम में और चलचित्र ( प्रमाणन) नियम, 1983. के नियम 7 तथा 8 के साथ पठित चलचित्र अधि- नियम, 1952 ( 1952 का 37 ) की धारा 5 की उप - धारा ( 1 ) 7946

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ ASVINA 7, 1929.

द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केंद्र सरकार, केंद्रीय फिल्म प्रमाणन बोर्ड के तिरूवनंतपुरम सलाहकार पैनल के सदस्यों के कार्यकाल को दिनांक 15-06-2007 से 10-07-2007 तक की अवधि के लिए बढ़ाती है ।

[फा. सं. 809/9/2004- एफ ( सी) ] संगीता सिंह, निदेशक ( फिल्म) New Delhi, the 22nd August , 2007 S.O. 2767. In continuation of this Ministry's notification of even number dated 15-06-2005 and in exercise of the powers conferred by sub - section ( 1 ) of Section 5 of the Cinematograph Act, 1952 (37 of 1952) read with rules 7 and 8 of the Cinematograph ( Certification ) Rules , 1983, the Central Government is pleased to extend the term of the members of the Thiruvananthapuram Advisory Panel of the Central Board of Film Certification forthe period from 15-06-2007 to 10-07-2007.

[F. No. 809/9/2004- F( C) ] SANGEETA SINGH, Director ( Films) नई दिल्ली, 6 सितम्बर, 2007

का.आ. 2768. इस मंत्रालय के दिनांक 31 मई, 2007 की समसंख्यक अधिसूचना के अनुक्रम में और चलचित्र ( प्रमाणन ) नियम, 1983 के नियम 7 तथा 8 के साथ पठित चलचित्र अधिनियम, 1952 ( 1952 का 37 ) की धारा 5 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्र सरकार निम्नलिखित व्यक्तियों को तत्काल प्रभाव से दो वर्षों की अवधि के लिए अथवा अगले आदेशों तक, जो भी पहले हो, केंद्रीय फिल्म प्रमाणन बोर्ड के हैदराबाद सलाहकार पैनल के सदस्यों के रूप में नियुक्त करती है :

1. श्री एम. मधुमोहन यादव, मकान. नं. 20-1-587 , गोल्लाकिडिकी, पुराना पुल , हैदराबाद । 2. डॉ. ( श्रीमती ) भट्टू सुशीला, 79/2 आर टी, म्यूनीसिपल कॉलोनी , मालकपेट, हैदराबाद-500036

3. श्री जी. चन्द्रशेखर राव , एम आर सी भवन, रोड नं. 6, मकान नं. 42, नजदीक अपोलो अस्पताल , फिल्म नगर, हैदराबाद ।

[फा. सं. 809/1/2007- एफ (सी ) ]

संगीता सिंह, निदेशक ( फिल्म ) New Delhi , the 6th September, 2007

S.O. 2768. In continuation of this Ministry's Notification of even number dated 31st May, 2007 and in exercise of the powers conferred by sub- section ( 1 ) of Section 5 of the Cinematograph Act, 1952 (37 of 1952) read with rules 7 and 8 of the Cinematograph (Certifica- tion) Rules, 1983 , the Central Government is pleased to appoint the following persons as members of the Hyderabad Advisory Panel of the Central Board of Film Certification with immediate effect for a period of two ycars or until further orders , whichever is earlier :

[PART II-SEC. 3(ii ) ] (i) Shri M. Madhumohan Yadav, H. No. 20-1-587, Gollakidiki , Puranapul , Hyderabad .

(ii) Dr. ( Smt .) Bhattu Susheela , 79/2RT, Municipal Colony, Malakpet, Hyderabad- 500036 .

( iii) Shri G. Chandra Sekhar Rao, MRC Building, Road No. 6 , House No. 42, Near Apollo Hospital, Film Nagar , Hyderabad.

[F. No. 809/1/2007 - F( C) ] SANGEETA SINGH , Director ( Films) नई दिल्ली, 6 सितम्बर, 2007

का.आ. 2769. इस मंत्रालय के दिनांक 11-07-2007 की समसंख्यक अधिसूचना के अनुक्रम में और चलचित्र ( प्रमाणन ) नियम, 1983 के नियम 7 तथा 8 के साथ पठित चलचित्र अधिनियम, 1952 ( 1952 का 37 ) की धारा 5 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, केन्द्र सरकार निम्नलिखित व्यक्तियों को तत्काल प्रभाव से दो वर्षों की अवधि के लिए अथवा अगले आदेशों तक, जो भी पहले हो, केंद्रीय फिल्म प्रमाणन बोर्ड के बंगलौर सलाहकार पैनल के सदस्यों के रूप में नियुक्त करती है :

1. श्रीमती शारदा नायक , विवेक अपार्टमेंट, 70/1, वाणी विलास ( एन ) रोड, बसावानागुडी, बंगलौर-560004

2. श्रीमती एन.एस. रत्ना प्रभा , 33-डी, बी.जी. रेलवे क्वार्टर , बंगलौर-560023.

[फा. सं. 809/5/2007- एफ ( सी ) ] संगीता सिंह , निदेशक ( फिल्म) New Delhi , the 6th September , 2007

S.O. 2769.-In continuation of this Ministry's Notification of even number dated 11-02-2007 and in ex- ercise of the powers conferred by sub - section ( 1 ) of Sec- tion 5 of the Cinematograph Act, 1952 ( 37 of 1952) read with rules 7 and 8 of the Cinematograph ( Certification) Rules, 1983 , the CentralGovernment is pleased to ap- point the following persons as members of the Bangalore Advisory Panel of the Central Board of Film Certification with immediate effect for a period of two years or until further orders, whichever is carlier :

(i) Smt. Sharda Naik, Vivek Apartment , No. 70/1 , Vani Vilas ( N) Road , Basavanagudi , Bangalore -560 004.

(ii) Smt. N. S. Rathna Prabha , 33 -D, B.G. Railway Quarters , Bangalore -560 023.

[F. No. 809/5/2007- F (C) ] SANGEETA SINGH , Director ( Films) 7947 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3 ( ii ) ]

नई दिल्ली , 6 सितम्बर , 2007

रसायन एवं उर्वरक मंत्रालय (उर्वरक विभाग )

नई दिल्ली, 19 सितम्बर , 2007

का.आ. 2770. इस मंत्रालय के दिनांक 29-03-2007 की समसंख्यक अधिसूचना के अनुक्रम में और चलचित्र ( प्रमाणन ) नियम, 1983 के नियम 7 तथा 8 के साथ पठित चलचित्र अधिनियम, 1952 ( 1952 का 37 ) की धारा 5 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्र सरकार , तत्काल प्रभाव से दो वर्षों की अवधि के लिए अथवा अगले आदेशों तक , जो भी पहले हो , केंद्रीय फिल्म प्रमाणन बोर्ड के चेन्नई सलाहकार पैनल की सदस्य के रूप में सुश्री एम. पी. बाला मीरा , 1 , कल्लूकरण स्ट्रीट, मायलापुर , चेन्नई-600004 को नियुक्त करती है ।

का.आ. 2772. केन्द्रीय सरकार , राजभाषा ' संघ के शासकीय प्रयोजनों के लिए प्रयोग ' नियम , 1976 के नियम 10 के उप- नियम (4) के अनुसरण में रसायन और उर्वरक मंत्रालय , उर्वरक विभाग के प्रशासनिक नियंत्रणाधीन सहकारी समिति कृषक भारती कोओपरेटिव लि. ( कृभको ) के निम्नलिखित कार्यालयों जिनके शत - प्रतिशत कर्मचारियों ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है, को अधिसूचित करती है:

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

1. कृभको, क्षेत्रीय कार्यालय , औरंगाबाद 2. कृभको, क्षेत्रीय कार्यालय , नागपुर 3. कृभकों, क्षेत्रीय कार्यालय , नासिक [सं. ई-11011/1 /2006- हिन्दी ] विजय छिब्बर , संयुक्त सचिव

MINISTRY OF CHEMICALS AND FERTILIZERS (Department of Fertilizers) New Delhi , the 19th September , 2007 New Delhi , the 6th September , 2007 S.O. 2770.- In continuation of this Ministry's Notification of even number dated 29-03-2007 and inex- ercise of the powers conferred by sub - section (1 ) of Section 5 of the Cinematograph Act , 1952 (37 of 1952) read with rules 7 and 8 of the Cinematograph (Certifica- tion) Rules , 1983 the Central Government is pleased to appoint Ms. M. P. Bala Meera , No. 1, Kullukaran Street , Mylapore, Chennai -600004 as a member of the Chennai Advisory Panel of the Central Board of Film Certification with immediate effect for a period of two years or until further orders , whichever is earlier .

[F. No. 809/2/2007 -F(C)] SANGEETA SINGH, Director (Films) नई दिल्ली , 6 सितम्बर , 2007

S.O. 2772.-In pursuance of sub- Rule (4) of the Rule 10 of the Official Language 'Use for official purposes of the Union' Rule , 1976 the Central Govt . hereby notifies the following offices of Krishak Bharati Co - operative Limited (Kribhco ) a Co -operative under the Administrative Control of the Ministry of Chemicals and Fertilizers , Department of Fertilizers , whereof 100 % staff have acquired the working knowledge of Hindi :

1. Kribhco , Regional Office, Aurangabad 2. Kribhco, Regional Office , Nagpur 3. Kribhco , Regional Office , Nasik [No. E- 11011/1/2006-Hindi ] VIJAY CHHIBBER, Jt. Secy.

का.आ. 2771.-इस मंत्रालय के दिनांक 06-08-2007 की समसंख्यक अधिसूचना के अनुक्रम में और चलचित्र ( प्रमाणन ) नियम, 1983 के नियम 7 तथा 8 के साथ पठित चलचित्र अधिनियम, 1952 ( 1952 का 37 ) की धारा 5 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , केन्द्र सरकार, को तत्काल प्रभाव से दो वर्षों की अवधि के लिए अथवा अगले आदेशों तक , जो भी पहले हो , केंद्रीय फिल्म प्रमाणन बोर्ड के मुंबई सलाहकार पैनल की सदस्य के रूप में श्री कीर्ति एम. रावल , 128/1022 , मोतीलाल नगर नं. 1 , डी. बी. मोरे रोड, गोरेगांव ( प. ) , मुंबई-400104 को नियुक्त करती है।

नई दिल्ली, 19 सितम्बर , 2007 [फा. संख्या 809/4/2007- एफ ( सी ) ] संगीता सिंह, निदेशक ( फिल्म)

New Delhi , the 6th September , 2007

का.आ. 2773. केन्द्रीय सरकार , राजभाषा ' संघ के शासकीय प्रयोजनों के लिए प्रयोग ' नियम , 1976 के नियम 10 के उप- नियम ( 4 ) के अनुसरण में रसायन और उर्वरक मंत्रालय , उर्वरक विभाग के प्रशासनिक नियंत्रणाधीन सहकारी समिति कृषक भारती कोओपरेटिव लि. ( कृभको) के निम्नलिखित कार्यालयों जिनके शत- प्रतिशत कर्मचारियों ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , को अधिसूचित करती है:

1. कृभको , क्षेत्रीय कार्यालय , औरंगाबाद

2. कृभको, क्षेत्रीय कार्यालय , नागपुर 3. कृभको, क्षेत्रीय कार्यालय , नासिक S.O. 2771.-In continuation of this Ministry's Notification of even number dated 06-08-2007 and inex- ercise of the powers conferred by sub - section (1) of Section 5 of the Cinematograph Act, 1952 (37 of 1952) read with rules 7 and 8 of the Cinematograph (Certifica- tion) Rules , 1983 the Central Government is pleased to appoint Shri Kirti M. Rawal , 128/1022, Motilal Nagar No. 1, D. B. More Road, Goregaon (W), Mumbai -400104 as member of the Mumbai Advisory Panel of the Central Board of Film Certification with immediate effect for a period of two years or until further orders , whichever is earlier.

[सं. ई-11011/1/2006- हिन्दी] विजय छिब्बर, संयुक्त सचिव [F. No. 809/4/2007-F(C)] SANGEETA SINGH, Director (Films)

3855 GI /2007-2 7948

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

[PART II-SEC . 3 ( ii ) ] New Delhi , the 19th September, 2007

कारपोरेट कार्य मंत्रालय नई दिल्ली , 3 सितम्बर , 2007

S.O. 2773. In pursuance of sub- Rule (4) of the Rule 10 of the Official Language 'Use for official purposes of the Union " Rule , 1976 the Central Govt. hereby notifies the following offices of Krishak Bharati Co-operative Limited (Kribhco ) a Co - operative under the Administrative Control of the Ministry of Chemicals and Fertilizers , Department of Fertilizers , whereof 100% staff have acquired the working knowledge of Hindi :

का.आ. 2775. केन्द्रीय सरकार, राजभाषा ( संघ के शासकीय प्रयोजनों के लिए प्रयोग ) नियम , 1976 के नियम 10 के उप- नियम (4) के अनुसरण में कारपोरेट कार्य मंत्रालय के निम्नलिखित तीन कार्यालयों में हिन्दी का कार्यसाधक ज्ञान रखने वाले कर्मचारियों की संख्या 80 प्रतिशत से अधिक हो जाने के फलस्वरूप उन्हें एतद्वारा अधिसूचित करती है

1. Kribhco , Regional Office , Aurangabad

1. कम्पनी रजिस्ट्रार , पुणे

2. Kribhco , Regional Office , Nagpur

2. भारतीय प्रतिस्पर्धा आयोग , नई दिल्ली 3. Kribhco , Regional Office , Nasik

3. गंभीर धोखाधड़ी जांच- पड़ताल कार्यालय, नई दिल्ली । [No. E- 11011/ 1/2006 -Hindi ] VIJAY CHHIBBER, Jt . Secy .

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

MINISTRY OF CORPORATE AFFIAIRS New Delhi , the 3rd September , 2007 कृषि मंत्रालय ( कृषि एवं सहकारिता विभाग ) नई दिल्ली , 17 सितम्बर , 2007

S.O. 2775.-In pursuance of sub - Rule (4) ofthe Rule 10 of the Official Language (Use for official pur- poses of the Union ) Rule, 1976 the Central Government hereby notifies the following three offices of the Ministry of Corporate Affairs,airs, whereof more than 80% employees have acquired wacquired working knowledge of Hindi :-

का.आ. 2774. केन्द्रीय सरकार , राजभाषा ' संघ के शासकीय प्रयोजनों के लिए प्रयोग' नियम , 1976 के नियम 10 के उप- नियम ( 4 ) के अनुसरण में कृषि एवं सहकारिता विभाग , कृषि मंत्रालय के प्रशासनिक नियंत्रणाधीन वनस्पति संरक्षण, संगरोध एवं संग्रह निदेशालय, फरीदाबाद के निम्नलिखित क्षेत्रीय कार्यालयों को जिसके 80 प्रतिशत कर्मचारीवृन्दि ने हिन्दी का कार्यसाधक ज्ञान प्राप्त कर लिया है , अधिसूचित करती है:-

1. Registrar of Companies , Pune . 2. Competition Commission of India , New Delhi 3. Serious Fraud Investigation Office , New Delhi . [No. E- 12018/1/2006-Hindi ] SAVITA PRABHAKAR,Dy. Secy.

मानव संसाधन विकास मंत्रालय (उच्चतर शिक्षा विभाग ) नई दिल्ली, 27 अगस्त , 2007

1. वरस्पति संगरोध केन्द्र, बेंगलौर एयर कार्गो कॉम्पलैक्स ( निर्यात ) , द्वितीय तल , एम.एस.आई.एल. बिल्डिग , एयरपोर्ट निकास रोड , बंगलौर-560 017

2. वनस्पति संगरोध केन्द्र, एन.यू.- 10, बी-80 , शक्ति नगर , कांडला ( गुजरात ) -370201

[सं. 3-6/2004- हिन्दी नीति ]

के. एन. कुमार , संयुक्त सचिव

का.आ. 2776. ऑरोविले प्रतिष्ठान अधिनियम , 1988 (1988 का 54 ) की धारा 12 के साथ पठित धारा 11 द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए, केन्द्र सरकार, एतद्द्वारा , श्री डी. पी. चट्टोपाध्याय , जिन्होंने ऑरोविले प्रतिष्ठान के शासी बोर्ड की सदस्यता से इस्तीफा दे दिया है , के स्थान पर निम्नलिखित व्यक्ति को ऑरोविले प्रतिष्ठान के शासी बोर्ड , जिसका गठन दिनांक 6-9-2004 की समसंख्यक अधिसूचना के जरिए किया गया था, के एक सदस्य के रूप में मनोनीत करती है : -

MINISTRY OF AGRICULTURE

श्रीमती अमीता मेहरा , द प्रेजेंस , सेक्टर 23 , हुडा, गुड़गांव -122017 (हरियाणा ) , दूरभाष : 0124-2367134

(Department of Agriculture and Co - opeartion) New Delhi , the 17th September , 2007

[सं. 27-50/2002- यू.यू. ] केशव देसिराजू, संयुक्त सचिव

MINISTRY OF HUMAN RESOURCE DEVELOPMENT (Department of Higher Education) New Delhi , the 27th August, 2007

S.O. 2774.- In pursuance of sub- Rule (4) of the Rule 10 ofthe Official Language ( Use for official purposes of the Union) Rule , 1976, the Central Government . hereby notifies the following offices of the Directorate of Plant Protection Quarantine and Storage , Faridabad, under the Administra- tive Control of the Department of Agriculture and Co-operation, Ministry of Agriculture, 80% staff whereof

have acquired the working knowledge of Hindi :- 1. Plant Quarantine Station, Bangalore Air Cargo Complex ( Exports) , 2nd Floor , M.S.I.L. Building ,

Airport ExitRoad, Bangalore - 560 017

S.O. 2776. In exercise of the powers conferred by Section 11 read with Section 12 of the Auroville Foun- dation Act, 1988 ( 54 of 1988 ), the Central Government hereby nominates , for the remaining term of the Board, i.e., up to 5th September, 2008, the following person as member ofGoverning Board of the Auroville Foundation, constituted vide Notification of even number dated 6-9-2004, in place of Shri D.P. Chattopadhyaya , who has resigned from the Board :

2. Plant Quarantine Station , N. U. - 10 , B -80 , Shakti Nagar , Kandla, (Gujarat) -370 201

Smt . Ameeta Mehra The Presence , Sector 23 , HUDA, Gurgaon 122017 , ( Haryana) Telephone No. 0124-2367134

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

[No. 27-50/2002 -UU] KESHAV DESIRAJU , Jt . Secy.

7949 भारत का राजपत्र सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 ( ii) ]

उपभोक्तामामले , खाद्य और सार्वजनिक वितरण मंत्रालय

(उपभोक्ता मामले विभाग )

नई दिल्ली, 31 अगस्त, 2007

का. आ. 2777.-केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है किउक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम, 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप- धारा ( 7 ) और उप- धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स ए एण्ड डी कंपनी लि. , 3-23-14 हिगाशीलकेबुकुरो , तोशिमा-कू , टोक्यो-170-0013 , जापान द्वारा विनिर्मित और मैसर्स एवन वेइंग सिस्टम्स लि. , 15 , बी विंग , कमल कुज , मेघा एच एस जी सोसायटी एस वी रोड, अंधेरी ( वेस्ट) , मुंबई-400058 बिक्री के पहलेअथवा पश्चात बिना किसी बदलाव के भारत में विपणित विशेष यथार्थता ( यथार्थता वर्ग -1 ) वाले ' जीएच-252 ' श्रृंखला के अंकक सूचन सहित अस्वचालित तोलन उपकरण ( टेबल टॉप प्रकार ) के मॉडल का, जिसके ब्रांड का नाम ' ए एण्ड डी कंपनी लिमिटेड ' है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/ 13/07 /143 समनुदेशित किया गया है , अनुमोदन प्रमाण- पत्र जारी और प्रकाशित करती है ।

bralytical

Balances

GTH- 282

GH/HRi

series

GL1-300

GH-300

118-3002

उक्त मॉडल एक इलैक्ट्रोमैगनेटिक फोर्स कम्पनसेशन प्रिंसीपल आधारित अस्वचालित ( टेबल टॉप प्रकार ) तोलन उपकरण है । इसकी अधिकतम क्षमता 250 ग्राम और न्यूनतम क्षमता 100 मि. ग्राम है । सत्यापन मापमान अन्तराल ( ई ) का मान 1 मि. ग्रा. है । तथा उपकरण की रीडिबीलिटी " डी " का मान 100 ग्रा. / 250 ग्रा. क्षमता के अनुसार 0.01/0.1 मि.ग्रा . है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यकलनात्मक धारित आधेयतुलन प्रभाव है । लिक्विड क्रिस्टल डायोड ( एल सी डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट, 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है ।

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

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

[फा. सं. डब्ल्यूएम -21 (223 )/2006]

आर. माथुरबूथम , निदेशक , विधिक माप विज्ञान 7950

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 /ASVINA 7, 1929 [PART II-SEC. 3 (ii) ] MINISTRY OF CONSUMER AFFAIRS, FOOD AND PUBLIC DISTRIBUTION

(DEPARTMENT OF CONSUMER AFFAIRS)

New Delhi , the 31st August, 2007

S.O. 2777.-Whereas, the Central Government, after considering the report submitted to it by the prescribed authority, is satisfied that the model described in the said report ( see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules, 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore, in exercise of the powers conferred by sub- sections (7) and (8) of Section 36 of the said Act, theCentral Government hereby issues and publishes the certificate of approval of the model of non - automatic (Table top type) weighing instrument with digital indication " GH 252 " series of Special accuracy ( Accuracy class - 1 ) and with brand name "A & D Company Limited " ( hereinafter referred to as the said model ) , manufactured by M/s . A & D Comapny Limited 3-23-14 Higashilkebukuro, Toshima- ku , Tokyo 170 0013 , Japan and Marketed in India without any alteration before or after saleby M/ s Avon Weighing Systems Ltd. , 15, ' B ' Wing, Kamal Kunj , Megha HSG Soc . , S.V. Road, Andheri (W), Mumbai -400058 and which is assigned the approval mark IND/ 13 /07/143 ;

Analytical

Micro Balances

GH/HRi

GK-300

series

GH-202 GH-200 GH-120

118-2021

FIR-3001

The said model is an Electro Magnetic Force Compensation based non - automatic weighing instrument (Table top type) with a maximum capacity of 250g and minimum capacity of 100 mg . The verification scale interval ( e) is 1 mg . The readability of the instrument (d) is 0.01/0.1mg . corresponding to capacity 100g./250g . It has a tare device with 100 per cent subtractive retained tare effect . The Liquid Crystal Dispode (LCD )/Display indicates the weighing result. The instrument operates on 230 Volts , 50 Hertz alternative current power supply .

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

Further, in exercise of the powers conferred by sub- section ( 12) of Section 36 of the said Act , the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make, accuracy and performance of same series with maximum capacity up to 50kg and with number of verification scale interval (n) Equal to or more than 50,000 accuracy for ' e ' value of Img . or more and with ' e ' value of1 ×10k, 2x10 or 5x10 % , k being a positive or nagative whole number or equal to zero manufacturedby the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured .

[ F. No. WM- 21 ( 223 )/2006 ]

R. MATHURBOOTHAM, Director of Legal Metrology 7951 भारत का राजपत्र सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

नई दिल्ली , 11 सितम्बर , 2007

का. आ. 2778. केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है किउक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट तथा माप मानक अधिनियम , 1976 ( 1976 का 60 ) और बाट तथा माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अंतः , अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और उप - धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स हाई टेक वेईंग स्केल्स , सी/ ओ श्री लक्ष्मी नारायण स्टोर , बलिचक साही , जटनी , भुवनेश्वर-752050 , उड़ीसा द्वारा विनिर्मित मध्यम यथार्थतां वर्ग ( यथार्थता वर्ग- III ) वाले ' एलएनटी ' श्रृंखला के अंकक सूचक सहित अस्वचालित तोलन उपकरण ( टेबलटॉप प्रकार ) के मॉडल का, जिसके ब्राण्ड का नाम ' हाई टेक ' है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/07/85 समनुदेशित किया गया है , अनुमोदन प्रमाण- पत्र जारी और प्रकाशित करती है ।

उक्त मॉडल एक विकृत गैज प्रकार का भार सैल आधारित तोलन अस्वचालिक तोलन ( टेबलटॉप प्रकार ) है । इसकी अधिकतम क्षमता 30 किलो ग्राम और न्यूनतम क्षमता 100 ग्राम है । इसका सत्यापन मापमान अन्तराल 5 ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यकलनात्मक धारित आधेयतुलन प्रभाव है । लाईट इमिटिंग डायोड तोलन परिणाम उपदर्शित करता है। उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है। स्टाम्पिंग प्लेट को सील करने के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए भी सीलबन्द किया जाएगा और मॉडल को बिक्री के पूर्व या उपरांत इसके सामग्री, यथार्थता , डिजाइन , सर्किट डायग्राम , वर्किंग सिद्धान्त आदि के रूप में कोई परिवर्तन न किया जा सके ।

Class : III

Max : 30Kg

Min : 100g

HI-TECH

e :5g

HI-TECH

और केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाण - पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिज़ाइन के अनुसार और उसी सामग्री से , जिससे उक्त अनुमोदित मॉडल का विनिर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक , यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 100 मि. ग्रा. से 2 ग्राम के " ई " मान के लिए 100 से 10,000 तक की रेंज में सत्यापन मापमान अंतराल ( एन ) और 5 ग्राम या उससे अधिक के ' ई ' मान के लिए 500 से 10,000 की रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 किलोग्राम तक की अधिकतम क्षमता वाले हैं और "ई " मान 1 × 10 , 2× 10 * या 5 × 10 , के हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं।

[फा. सं. डब्ल्यू एम -21 (225 )/2006 ] आर. माथुरबूथम , निदेशक , विधिक माप विज्ञान 7952

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929 [PART II-SEC . 3(ii) ]

New Delhi , the 11th September , 2007

S.O. 2778. Whereas the Central Government , after considering the report submitted to it by the prescribed authority, is satisfied that the Model described in the said report (see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976 ) and the Standards of Weights and Measures ( Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore , in exercise of the powers conferred by sub - sections (7 ) and (8) of Section 36 of the said Act , the Central Government hereby issues and publishes the certiificate of approval of the model of non - automatic weighing instrument (Table Top type) with digital indication of " LNT " series of medium accuracy (accuracy class - III ) and with brand name "HI - TECH " ( herein referred to as the said model ), manufacturedby M/ s Hi - tech weighing Scales , C/ o Shree Laxmi Narayan Store , Balichhak Sahi , Jatni , Bhubneshwar - 752 050 , Orissa and which is assigned the approval mark IND/ 09/07/85 ;

The said model is a strain gauge type load cell based weighing instrument with a maximum capacity of 30 kg and minimum capacity of 100g . The verification scale interval (e) is 5g . It has a tare device with a 100 per cent subtractive retained tare effect . The light emitting diode ( LED) display indicates the weighing result . The instrument operates on 230 Volts and 50 - Hertz alternate current power supply . In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms in of its material , accuracy , design , circuit diagram, working principle , etc , before or after sale .

Class : III

Max : 30Kg

Min 100g

5g

HI -TECH

HI -TECH

Further in exercise of the powers conferred by sub - section ( 12) of the Section36 of the said Act the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make and performance of same series with maximum capacity up to 50 kg and with the number of verification scale interval (n) in the range of 100 to 10,000 for ' e ' vatue between 100 mg to 2g and with number of verification scale interval ( n) in the range of 500 to 10,000 for ' e' value of 5g or more and ' e ' value of the form I × 10* , 2× 10* or 5×10k, k being a positive or negative whole number or equal to zero manufactured by the same manufacturer in accordnce with the same principle , design and with the same materials with which , the said approved model has been manufactured .

[ F. No. WM -21 ( 225)/ 2006]

R. MATHURBOOTHAM , Director of Legal Metrology [ भाग II-खण्ड 3 (ii) ]

7953 भारत का राजपत्र सितम्बर 29 , 2007/ आश्विन 7 , 1929

नई दिल्ली , 11 सितम्बर , 2007

का. आ. 2779.-केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट तथा माप मानक अधिनियम , 1976 ( 1976 का 60 ) और बाट तथा माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और उप - धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स हाई टेक वेईंग स्केल्स , सी/ ओ श्री लक्ष्मी नारायण स्टोर , बलिचक साही, जटनी , भुवनेश्वर -752050 , उड़ीसा द्वारा विनिर्मित मध्यम यथार्थता वर्ग ( यथार्थता वर्ग- III ) वाले ' एलएनपी' श्रृंखला के अंकक सूचक सहित अस्वचालित तोलन उपकरण ( प्लेटफार्म प्रकार ) के मॉडल का, जिसके ब्राण्ड का नाम ' हाई टेक' है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/ 09/07/86 समनुदेशित किया गया है , अनुमोदन प्रमाण- पत्र जारी और प्रकाशित करती है ।

उक्त मॉडल एक विकृत गेज प्रकार का भार सैल आधारित तोलन अस्वचालित तोलन ( प्लेटफार्म प्रकार ) है । इसकी अधिकतम क्षमता 60 किलोग्राम और न्यूनतम क्षमता 200 ग्राम है । इसका सत्यापन मापमान अन्तराल 10 ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यकलनात्मक धारित आधेयतुलन प्रभाव है । लाईट इमिटिंग डायोड तोलन परिणाम उपदर्शित करता है। उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है । स्टाम्पिंग प्लेट को सील करने के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए भी सीलबन्द किया जाएगा और मॉडल को बिक्री के पूर्व या उपरांत इसके सामग्री , यथार्थता , डिजाइन , सर्किट डायग्राम , वर्किंग सिद्धान्त आदि के रूप में कोई परिवर्तन न किया जा सके।

Class : III

Max : 60Kg

Min 200g

:10g e

HI-TECH

HI -TECH

और , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाण पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से , जिससे उक्त अनुमोदित मॉडल विनिर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक , यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 100 मि. ग्रा. से 2 ग्राम के ' ई ' मान के लिए 100 से 10,000 तक की रेंज में सत्यापन मापमान अंतराल ( एन ) और 5 ग्राम या उससे अधिक के ' ई ' मान के लिए 500 से 10,000 की रेंज में सत्यापन मापमान अंतराल ( एन सहित 50 किलोग्राम से अधिक और 5000 किलोग्राम तक की अधिकतम क्षमता वाले हैं और ' ई ' मान 1x10 , 2× 10 * या 5 × 10 के हैं , जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं ।

[फा. सं. डब्ल्यूएम -21 ( 225 ) /2006 ] आर. माथुरबूथम , निदेशक , विधिक माप विज्ञान [PART II-SEC . 3 ( ii) ] 7954

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

New Delhi, the 11th September , 2007

S.O. 2779. Whereas the Central Government , after considering the report submitted to it by the prescribed authority , is satisfied that the Model described in the said report (see the figure given below ) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 ( 60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore, in exercise of the powers conferred by sub- sections (7) and (8 ) of Section 36 of the said Act, the Central Government hereby issues and publishes the cetificate of approval of the model of non- automatic weighing instrument (Platform type ) with digital indication of " LNP " series of medium accuracy ( accuracy class - III ) and with brand name " HI - TECH " ( herein referred to as the said model ) , manufactured by M /s . Hi-tech Weighing Scales , C/ o . Shree Laxmi Narayan Store , Balichhak Sahi , Jatni , Bhubneshwar -752 050 , Orissa and which is assigned the approval mark IND/09/07/86 ;

The said model is a strain gauge type load cell based weighing instrument with a maximum capacity of 60 kg . and minimum capacity of 200 g . The verification scale interval (e ) is 10 g. It has a tare device with a 100 percent subtractive retained tare effect . The light emittingdiode (LED ) display indicates the weighing result . The instrument operates on 230 Volts and 50 - Hertz alternate current power supply. In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms of its material , accuracy , design , circuit diagram, working principle , etc. before or after sale .

Class: III

Max : 60Kg

Min: 200g

e :10g

HI -TECH

HI -TECH

Further in exercise of the powers conferred by sub - section ( 12) of the Section 36 of the said Act the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instruments of similar make and performance of same series with maximum capacity above 50 kg . and upto 5000 kg . and with the number of verification scale interval (n ) in the range of 100 to li 000 for ' e ' value between 100 mg . to 2g . and with number of verification scale interval (n ) in the range of 500 to 10000. ' e ' value of 5g or more and ' e ' value of the form 1 2× 10 % or 5 × 10k , k being a positive or negative whole number or equal to zero , manufactured by the same manufacture. in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured .

[F. No. WM - 21 (225 )/2006 ]

R. MATHURBOOTHAM , Director of Legal Metrology 7955 भारत का राजपत्र सितम्बर 29 , 2007/आश्विन 7, 1929

[भाग II- खण्ड 3 ( ii ) ]

नई दिल्ली , 11 सितम्बर , 2007

का. आ. 2780.-केन्द्रीय सरकार का , विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार पर करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट तथा माप मानक अधिनियम , 1976 ( 1976 का 60 ) और बाट तथा माप मानक (मॉडलों का अनुमोदन ) नियम, 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप- धारा ( 7 ) और उप - धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स हाई टेक वेईंग स्केल्स , सी/ ओ श्री लक्ष्मी नारायण स्टोर , बलिचक साही , जटनी, भुवनेश्वर -752050 , उड़ीसा द्वारा विनिर्मित उच्च यथार्थता वर्ग ( यथार्थता वर्ग- II ) वाले ' एलएनजे ' श्रृंखला के अंकक सूचक सहित अस्वचालित तोलन उपकरण ( टेबलटॉप प्रकार ) के मॉडल का, जिसके ब्राण्ड का नाम ' हाई टेक' है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/07/84 समनुदेशित किया गया है, अनुमोदन प्रमाण- पत्र जारी और प्रकाशित करती है ।

उक्त मॉडल एक विकृत गैज प्रकार का भार सैल आधारित तोलन अस्वचालित तोलन ( टेबल टॉप प्रकार ) उपकरण है । इसकी अधिकतम क्षमता 10 किलो ग्राम और न्यूनतम क्षमता 50 ग्राम है । इसका सत्यापन मापमान अन्तराल 1 ग्रा. है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवकलनात्मक धारित आधेयतुलन प्रभाव है । लाईट इमिटिंग डायोड तोलन परिणाम उपदर्शित करता है। उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है। स्टाम्पिंग प्लेट को सील करने के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए भी सीलबन्द किया जाएगा और मॉडल को बिक्री के पूर्व या उपरांत इसके सामग्री , यथार्थता, डिजाइन , सर्किट डायग्राम , वर्किंग सिद्धान्त आदि के रूप में कोई परिवर्तन न किया जा सके।

Class: II

Max 10Kg

Min : 50g

e :1g

HI -TECH

HI -TECH-

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

[फा..सं. डब्ल्यूएम-21 ( 225 )/2006]

आर. माथुरबूथम , निदेशक , विधिक माप विज्ञान 3855 G1/2007-3 7956

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929 [PART II-SEC. 3 (ii)]

New Delhi , the 11th September , 2007

S.O. 2780. Whereas the Central Government, after considering the report submitted to it by the prescribed authority, is satisfied that the Model described in the said report (see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act , 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions;

Now, therefore, in exercise of the powers conferred by sub - sections (7 ) and (8 ) of Section 36 of the said Act, the Central Government hereby issues and publishes the cetiificate of approval of the model of non - automatic weighing instrument (Table Top type) with digital indication of " LNJ " series of high accuracy ( accuracy class - II ) and with brand name " HI - TECH" ( herein referred to as the said model ) , manufactured by M/ s Hi -tech Weighing Scales, C/ o . Shree Laxmi Narayan Store , Balichhak Sahi, Jatni , Bhubneshwar - 752 050 , Orissa and which is assigned the approval rnark IND/09/ 07/84;

The said model is a strain gauge type load cell based weighing instrument with a maximum capacity of 10 kg and minirnum capacity of 50 g . The verification scale interval (e) is 1 g . It has a tare device with a 100 percent subtractive retained tare effect . The light emitting diode (LED) display indicates the weighing result. The instrument operates on 230Volts and 50 - Hertz alternate current power supply . In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms of its material , accuracy , design , circuit diagram , working principle , etc. before or after sale .

Class : II

Max : 10Kg

Min : 50g

1g e

HI-TECH

HI -TECH

Further in exercise of the powers conferred by sub - section ( 12) of the section 36 of the said Act the Central Government hereby declares that this certificate of approval of the said Model shall also cover the weighing instruments uf similar make and performance of same serics with maximum capacity upto 50 kg and with the number of verification scale interval (n ) in the range of 100 to 50000 for ' e ' value of Img . to 50 mg and with verification scale interval (n) in the range of 500 to 50000 for ' e ' value of 100mg or more and ' c ' value of the form 1 × 10k , 2x10 or 5× 10k , k being a positive or negative whole number or equal to zero , manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured .

[ F. No. WM- 21 (225 ) /2006 ]

R. MATHURBOOTHAM , Director of Legal Metrology 7957 भारत का राजपत्र सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii ) ]

नई दिल्ली, 11 सितम्बर , 2007

का. आ. 2781.-केन्द्रीय सरकार का , विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है किउक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट तथा माप मानक अधिनियम, 1976 ( 1976 का 60 ) और बाट तथा माप मानक. (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः अब , केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 की उप - धारा ( 7 ) और उप- धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स मैटलर टोलेडो इण्डिया प्राइवेट लिमिटेड , अमर हिल्स , साकी विहार रोड , पवई, मुंबई-400072 , महाराष्ट्र द्वारा विनिर्मित मध्यम यथार्थता वर्ग ( यथार्थता वर्ग- III ) वाले ' दीवा- एस ' श्रृंखला के अंकक सूचक सहित अस्वचालित तोलन उपकरण ( टेबलटॉप प्रकार ) के मॉडल का, जिसके ब्राण्ड का नाम ' मैटलर टोलेडो ' है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/07/86 समनुदेशित किया गया है , अनुमोदन प्रमाण-पत्र जारी और प्रकाशित करती है ।

उक्त मॉडल एक विकृत गैज प्रकार का भार सैल आधारित तोलन अस्वचालित तोलन ( टेबल टॉप प्रकार ) है । इसकी अधिकतम क्षमता 15 किलो ग्राम और न्यूनतम क्षमता 40 ग्राम है । इसके साथ स्कैनर भी मुहैया कराया गया है। इसका सत्यापन मापमान अन्तराल 6 किलोग्राम तक 2 ग्राम और उससे अधिक 5 ग्रा. है। इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवक्लनात्मक धारित आधेयतुलन प्रभाव है। लाईट इमिटिंग डायोड तोलन परिणाम उपद‌र्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत पर कार्य करता है । स्टाम्पिंग प्लेट को सील करने के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए भी सीलबंद किया जाएगा और मॉडल को बिक्री के पूर्व या उपरांत इसके सामग्री , यथार्थता , डिजाइन , सर्किट डायग्राम , वर्किंग सिद्धान्त आदि के रूप में कोई परिवर्तन न किया जा सके।

0.000

और, केन्द्रीय सरकार उक्त अधिनियम की धारा 36 की उप- धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह घोषणा करती है , कि उक्त मॉडल के अनुमोदन के इस प्रमाण-पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धान्त, डिजाइन के अनुसार और उसी सामग्री से , जिससे उक्त अनुमोदित , मॉडल का विनिर्माण किया गया है, विनिर्मित उसी श्रृंखला के वैसे ही मेक , यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 100 मि. ग्रा. से 2 ग्राम के " ई " मान के लिए 100 से 10,000 तक की रेंज में सत्यापन मापमान अंतराल ( एन ) और 5 ग्राम या उससे अधिक के ' ई ' मान के लिए 500 से 10,000 की रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 किलोग्राम तक की अधिकतम क्षमता वाले हैं और 'ई ' मान 1 × 10 , 2 × 10 * या 5 × 10 , के हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं।

[फा. सं. डब्ल्यू एम -21 ( 162) /2006] आर. माथुरबूथम , निदेशक , विधिक माप विज्ञान 7958

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929 [PART II-SEC . 3 ( ii) ]

New Delhi, the 11th September , 2007

S.O. 2781. Whereas the Central Government , after considering the report submittedto it by the prescribed authority, is satisfied that the Model described in the said report (see the figure given below) is in conformity withthe provisions of the Standards of Weights and Measures Act , 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules , 1987 and the said model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions;

Now, therefore, in exercise of the powers conferred by sub - sections (7) and (8) of Section 36 of the said Act , the Central Government hereby issues and publishes the certificate of approval of the model of non - automatic weighing instrument (Table Top type ) with digital indication of " DIVA - S " series of medium accuracy ( accuracy class - III ) and with brand name "Mettler Toledo " (herein referred to as the said model) , manufacturedby M/s . Mettler - Toledo India Private Limited, Amar Hills , Saki Vihar Road , Powai , Mumbai -400072 and which is assigned the approval mark IND/09 /07/66 ;

The said model is a strain gauge type load cell based weighing instrument with a maximum capacity of 15 kg and minimum capacity of 40g.1t is also provided with scanner . The verification scale interval (e) is 2g up to 6 kg and 5g above it. It has a tare device wilh a 100 per cent subtractive retained tare effect . The liquid Crystal Display (LCD) display indicates the weighing result. The instrument operates on 230 Volts and 50 Hertz alternate current power supply. In addition to sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices and model shall not be changed in terms of its material , accuracy, design , circuit diagram , working principle , etc. before or after sale .

Further, in exercise of the powers conferred by sub - section (12) of the Section 36 of the said Act , the Central Government hereby declares that this certificate of approval of the said model shall also cover the weighing instrumemts of similar make and performance of same series with maximum capacity upto 50 kg and with number of verification scale interval (n ) in the range of 100 to 10000 for ' e ' value between 100 mg to 2g and with number of verification scale interval (n) in the range of 500 to 10000 for ' e ' value of 5g or more and ' e ' value of the form 1 × 10k, 2×10k or 5x10 , k being a positive or negative whole number or equal to zero manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which , the said approved model has been manufactured .

[F. No. WM - 21 ( 162) /2006 ]

R. MATHURBOOTHAM , Director of Legal Metrology 7959 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3 (ii) ]

नई दिल्ली , 11 सितम्बर , 2007

का.आ. 2782.- केन्द्रीय सरकार का, विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट तथा माप मानक अधिनियम , 1976 ( 1976 का 60 ) और बाट तथा माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा ;

अतः , अब , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप- धारा ( 7 ) और उप- धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स मैटलर टोलेडो इण्डिया प्राइवेट लिमिटेड , अमर हिल्स, साकी विहार रोड , पवई, मुंबई , 400072. , महाराष्ट्र द्वारा विनिर्मित मध्यम यथार्थता वर्ग ( यथार्थता वर्ग- III ) वाले " दीवा " श्रृंखला के अंकक सूचक सहित , अस्वचालित तोलन उपकरण ( टेबलटॉप प्रकार ) के मॉडल का , जिसके ब्रांड का नाम " मैटलर टोलेडो " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/09/07/67 समनुदेशित किया गया है , अनुमोदन प्रमाण-पत्र जारी और प्रकाशित करती है ।

उक्त मॉडल एक विकृत गैज प्रकार का भार सैल आधारित तोलन अस्वचालित तोलन ( टेबलटॉप प्रकार ) उपकरण है। इसकी अधिकतम क्षमता 15 किलोग्राम और न्यूनतम क्षमता 40 ग्राम है। इसका सत्यापन मापमान अन्तराल 6 किलोग्राम तक 2 ग्राम और उससे अधिक 5 ग्राम है । इसमें एक आधेयतुलन युक्ति है जिसका शत प्रतिशत व्यवकलनात्मक धारित आधेयतुलन प्रभाव है । लाईट इमिटिंग डायोड तोलन परिणाम उपदर्शित करता है। उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है । स्टाम्पिंग प्लेट को सील करने के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोले जाने से रोकने के लिए भी सीलबंद किया जाएगा और मॉडल को बिक्री के पूर्व या उपरांत इसके सामग्री , यथार्थता , डिजाइन , सर्किट डायग्राम वर्किंग सिद्धान्त आदि के रूप में कोई परिवर्तन न किया जा सके ।

0.000

और , केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप- धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह घोषणा करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाण- पत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धान्त , डिजाइन के अनुसार और उसी सामग्री से , जिससे उक्त अनुमोदित मॉडल का विनिर्माण किया गया है, विनिर्मित उसी श्रृंखला के वैसे ही मेक , यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 100 मि.ग्रा. से 2 ग्रा . के " ई " मान के लिए 100 से 10,000 तक की रेंज में सत्यापन मापमान अंतराल ( एन ) और 5 ग्रा. या उससे अधिक के " ई " मान के लिए 500 से 10,000 की रेंज में सत्यापन मापमान अंतराल ( एन ) सहित 50 किलाग्राम तक की अधिकतम क्षमता वाले हैं और " ई " मान 1 x 10 , 2 x 10 या 5 × 10 %, के हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं ।

[फा. सं. डब्ल्यूएम-21 (162) /2006]

आर. माथुरबूथम , निदेशक, विधिक माप विज्ञान 7960

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929

[PART II-SEC. 3 (ii)]

New Delhi , the 11th September, 2007

S.O. 2782.-Whereas the Central Government , after considering the report submitted to it by the prescribed authority , is satisfied that the Model described in the said report (see the figure given below) is in conformity with the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models) Rules, 1987 and the said Model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions ;

Now, therefore, in exercise of the powers conferred by sub - sections (7) and (8) of Section 36 of the said Act, the Central Government hereby issues and publishes the certificate of approval of the Model of non- automatic weighing instrument (Table Top type) with digital indication of " DIVA " series of medium accuracy (Accuracy class III ) and with brand name "Mettler Toledo " (herein referred to as the said Model), manufactured by M/s . Mettler- Toledo India Private Limited , Amar Hills , Saki Vihar Road, Powai , Mumbai -400072 and which is assigned the approval mark IND/09/07/67 ;

The said Model is a strain gauge type load cell based weighing instrument with a maximum capacity of 15 kg and minimum capacity of 40g. The verification scale interval (e) is 2g up to 6 kg and 5g above it. It has a tare device with a 100 per cent subtractive retained tare effect . The Liquid Crystal Display (LCD ) display indicates the weighing result. The instrument operates on 230 Volts and 50 Hertz alternate current power supply. In additionto sealing the stamping plate , sealing shall also be done to prevent the opening of the machine for fraudulent practices and Model shall not be changed in terms of its material, accuracy, design, circuit diagram, working principle , etc. before or after sale.

Further, in exercise of the powers conferred by sub- section ( 12) of the Section 36 of the said Act , the Central Government hereby declares that this certificate of approval of the said Model shall also cover the weighing instruments of similar make and performance of same series with maximum capacity up to 50 kg and with number of verification scale interval ( n) in the range of 100 to 10,000 for ' e ' value between 100mg to 2g and with number of verification scale interval (n) in the range of 500 to 10,000 for ' e ' value of 5g or more and ' e ' value of the form 1 × 10 %, 2 x 10% or 5 x 10%, k being a positive or negative whole number or equal to zero , manufactured by the same manufacturer in accordance with the same principle, design and with the same material with which , the said approved Model has been manufactured .

[ F. No. WM - 21 ( 162)/2006 ]

R. MATHURBOOTHAM , Director of Legal Metrology 7961 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन7 , 1929

[ भाग II- खण्ड 3 ( ii) ]

नई दिल्ली , 12 सितम्बर , 2007

का.आ. 2783.- केन्द्रीय सरकार का , विहित प्राधिकारी द्वारा उसे प्रस्तुत रिपोर्ट पर विचार करने के पश्चात् यह समाधान हो गया है कि उक्त रिपोर्ट में वर्णित मॉडल ( नीचे दी गई आकृति देखें ) बाट और माप मानक अधिनियम , 1976 ( 1976 का 60 ) तथा बाट और माप मानक (मॉडलों का अनुमोदन ) नियम , 1987 के उपबंधों के अनुरूप है और इस बात की संभावना है कि लगातार प्रयोग की अवधि में भी उक्त मॉडल यथार्थता बनाए रखेगा और विभिन्न परिस्थितियों में उपयुक्त सेवा प्रदान करता रहेगा;

अतः , अब, केन्द्रीय सरकार, उक्त अधिनियम की धारा 36 की उप- धारा ( 7 ) और उप - धारा ( 8 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए मैसर्स सावरकुंडला वेइंग सिस्टम , स्टेशन रोड , रायपुर , छत्तीसगढ़ -492009 द्वारा विनिर्मित मध्यम यथार्थता ( यथार्थता वर्ग- III ) वाले " एस के डब्ल्यू" श्रृंखला के अंकक सूचन सहित , अस्वचालित तोलन उपकरण ( वेब्रिज प्रकार ) के मॉडल का, जिसके ब्रांड का नाम " श्री अक्षर " है ( जिसे इसमें इसके पश्चात् उक्त मॉडल कहा गया है ) और जिसे अनुमोदन चिह्न आई एन डी/ 09/2007/65 समनुदेशित किया गया है, अनुमोदन प्रमाणपत्र जारी और प्रकाशित करती है ।

उक्त मॉडल ( नीचे दी गई आकृति देखें ) एक विकृत गेज अपरूपण तुलादण्ड प्रकार का भार सेल आधारित तोलन उपकरण है। इसकी अधिकतम क्षमता 30000 किलोग्राम और न्यूनतम क्षमता 100 कि.ग्राम है । सत्यापन मापमान अन्तराल ( ई ) 5 किलोग्राम है। इसमें एक आद्येयतुलन युक्ति है जिसका शत प्रतिशत व्यकलनात्मक धारित आधेयतुलन प्रभाव है । प्रकाश उत्सर्जक डायोड ( एल ई डी ) प्रदर्श तोलन परिणाम उपदर्शित करता है । उपकरण 230 वोल्ट और 50 हर्ट्ज प्रत्यावर्ती धारा विद्युत प्रदाय पर कार्य करता है । स्टाम्पिंग प्लेट के मुद्रांकन के अतिरिक्त मशीन को कपटपूर्ण व्यवहारों के लिए खोलने से रोकने के लिए सीलबंद भी किया जाएगा और मॉडल को बिक्री से पहले या बाद में उसकी सामग्री , यथार्थता, डिजाइन , सर्किट डायग्राम कार्यकारी सिद्धांत आदि की शर्तों के संबंध में परिवर्तित नहीं किया जाएगा । Savar kunola Senter50

SKW Sertes

SHRI AKSHAR

Pataca 102 87

और, केन्द्रीय सरकार , उक्त अधिनियम की धारा 36 की उप- धारा ( 12 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , यह घोषणां करती है कि उक्त मॉडल के अनुमोदन के इस प्रमाणपत्र के अंतर्गत उसी विनिर्माता द्वारा उसी सिद्धांत , डिजाइन के अनुसार और उसी सामग्री से, जिस्से उक्त अनुमोदित मॉडल का निर्माण किया गया है , विनिर्मित उसी श्रृंखला के वैसे ही मेक, यथार्थता और कार्यपालन के तोलन उपकरण भी होंगे जो 5 ग्रा. या उससे अधिक " ई " मान के लिए 500 से 10,000 तक की रेंज में सत्यापन अंतराल ( एन ) सहित 5000 कि.ग्रा. सेअधिक और 100 टन तक की अधिकतम क्षमता वाले हैं और " ई " मान 1 × 10 , 2× 10 * या 5× 10 * , के हैं, जो धनात्मक या ऋणात्मक पूर्णांक या शून्य के समतुल्य हैं ।

[फा. सं. डब्ल्यू एम-21 (239 )/2006] आर. माथुरबूथम , निदेशक , विधिक माप विज्ञान 7962.

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 /ASVINA 7, 1929

[PART II-SEC. 3 (ii) ]

New Delhi , the 12th September , 2007

S.O. 2783. Whereas the Central Government, after considering the report submitted to it by the prescribed authority, is satisfied that the Model described in the said report ( see the figure given below ) is in conformity with the provisions of the Standards of Weights and Measures Act, 1976 (60 of 1976) and the Standards of Weights and Measures (Approval of Models ) Rules, 1987 and the said Model is likely to maintain its accuracy over periods of sustained use and to render accurate service under varied conditions;

Now, therefore, in exercise of the powers conferred by sub- section (7) and (8 ) of Section 36 of the said Act , the Central Government hereby issues and publishes the certificate of approval of the Model of non- automatic weighing instrument ( Weight bridge type) with digital indication of " SKW " series of medium accuracy (Accuracy class III ) and with brand name " SHRI AKSHAR " ( herein referred to as the said Model ) , manufactured by M/s . Savarkundla Weighing System, Station Road, Raipur , Chattisgarh - 492009 and which is assigned the approval mark IND/09/07/65 ;

The said Model is a load cell based weighing instrument with a maximum capacity of 30000 kg. and minimum capacity of 100kg. The verification scale interval (e) is 5kg . It has a tare device with a 100 per cent substractive retained tare effect . The light emitting diode (LED) display indicates the weighing result . The instrument operates on 230 Volts and 50 Hertz alternate current power supply. In addition to sealing the stamping plate, sealing shall also be done to prevent the opening of the machine for fraudulent practices and Model shall not be changed in terms of its material , accuracy , design , circuit diagram , working principle etc. before or after sale .

50

Savar kunola Senier

SHRI AKSHAR

SKW Series

Как Сарасту 20000 K

Mon. Capacity 10

Accuracy3 Kg Class 1

Further , in exercise of the powers conferred by sub- section (12) of the Section 36 of the said Act, the Centre Government hereby declares that this certificate of approval of similar make and performance of same series with maximu.. capacity between 5000kg. and up to 100 tonne and w e said Model shall also cover the weighing instrum number of verification scale interval (n) in the range of 500 to 10,000 for ' e ' value of 5g . or more and ' e ' value of the form 1 x 10 %, 2 x 10% or 5 x 10k , k being a positive or negative whole number or equal to zero , manufactured by the same manufacturer in accordance with the same principle , design and with the same materials with which, the said approved Model has been manufactured.

[F. No. WM-21 (239)/2006]

R. MATHURBOOTHAM , Director of Legal Metrology 7963 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 ( ii) ]

भारतीय मानक ब्यूरो

नई दिल्ली, 20 सितम्बर , 2007

का. आ. 2784.- भारतीय मानक ब्यूरो नियम, 1987 के नियम 7 के उप नियम ( 1 ) के खंड ( ख ) के अनुसरण में भारतीय मानक ब्यूरो एतद्वारा अधिसूचित करता है कि जिन भारतीय मानकों के विवरण नीचे अनुसूची में दिए गए हैं वे स्थापित हो गए हैं :-

अनुसूची

स्थापित तिथि स्थापित भारतीय मानक ( कों ) की संख्या,

वर्ष और शीर्षक

क्रम सं.

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

4

3

2

1

सितम्बर , 2007 1. आई एस 15727 ( भाग 1 ) : 2007 आई एस ओ 12952-1 : 1998 वस्त्रादि-बिस्तरों काज्वलन व्यवहार भाग 1 सुलगती सिगरेट द्वारा ज्वलनशीलता ज्ञात करने की सामान्य पद्धतियाँ

सितम्बर, 2007 2. आई एस 15727 ( भाग 2 ) : 2007 आई एस ओ 12952-2 1998 वस्त्रादि- बिस्तरों काज्वलन व्यवहार भाग 1 सुलगती सिगरेट द्वारा ज्वलनशीलता ज्ञात करने की विशेष पद्धतियाँ

सितम्बर , 2007 3. आई एस 15727 ( भाग 3 ) : 2007 आई एस ओ 12952-3 1998 वस्त्रादि- बिस्तरों काज्वलन व्यवहार भाग 3 छोटी खुली ज्वाला में ज्वलनशीलता ज्ञात करने की सामान्य पद्धतियाँ

सितम्बर , 2007 4. आई एस 15727 ( भाग 4 ) : 2007 आई एस ओ 12952-4 1998 वस्त्रादि-बिस्तरों काज्वलन व्यवहार भाग 4 सुलगती सिगरेट द्वारा ज्वलनशीलता ज्ञात करने की विशेष पद्धतियाँ

सितम्बर , 2007 5. आई एस 15758 ( भाग 1 ) : 2007 आई एस ओ 9151 1995 वस्त्रादि- सुरक्षा वस्त्र भाग । लौ के संपर्क पर उष्मा के संचारण की विधि ज्ञात करना

सितम्बर , 2007 6. आई एस 157.58 ( भाग 2) : 2007 आई एस ओ 6942 2002 वस्त्रादि- सुरक्षा वस्त्र भाग 2 विकरण उष्मा के स्त्रोत से संपर्क पर वस्त्रादि सामग्री का आंकलन

सितम्बर , 2007 आई एस ओ 15025 2000 वस्त्रादि- सुरक्षा वस्त्र 7. आई एस 15758 ( भाग 4) 2007 भाग 4 सीमित ज्वाला फैलाव के जाँचने की पद्धति

सितम्बर , 2007 8. आई एस 15758 ( भाग 5) : 2007 आई एस ओ 9185 : 1990 वस्त्रादि- सुरक्षा वस्त्र भाग 5 पिघलते धातु के छींटों के प्रति प्रतिरोध ज्ञात करना

सितम्बर , 2007 9. आई एस 15760 ( भाग 2) : 2007 आई एस ओ 11677-2 : 1994 वस्त्रादि मशीनरी और सहायकांग- खुले सिरे की लूप के सपाट इस्पात हिल्ड के प्रमुख आयाम भाग 2 जे-आकार के सिरा लूप

3855 GI/ 2007-4 7964

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

1

2

10. आई एस 15760 ( भाग 3 ) : 2007 आई एस ओ 11677-3 1995 वस्त्रादि मशीनरी और सहायकांग- खुले सिरे की लूप के सपाट इस्पात हिल्ड के प्रमुख आयाम भाग 3 सी और जे-आकार के सिरे लूप के लिए छड़

11. आई एस 15761 ( भाग 2 ) : 2007 आई एस ओ 96-2 1992 वस्त्रादि मशीनरी औरसहायकांग- रिंग स्पिनिंग और रिंग डबलिंग फ्रेम के लिए रिंग और ट्रेव्लर भाग 2 एच जैड सी एच , एच जैड , जे- रिंग और उनके उपयुक्त ट्रेव्लर

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

4

सितम्बर , 2007 आई एस 10626 : 1983 का अधिक्रमण करते हुए

सितम्बर, 2007 आई एस 5138 : 1981 का अधिक्रमण करते हुए

इन भारतीय मानकों 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 : टीएक्सडी/जी -25] एम. एस. वर्मा, निदेशक एवं प्रमुख ( टीएक्सडी)

BUREAU OF INDIAN STANDARDS

New Delhi , the 20th September, 2007

S.O. 2784. In pursuance of clause (b) of sub - rule ( 1 ) of Rules (1 ) of Rule 7 of the Bureau of Indian Standards Rules , 1987, the Bureau of Indian Standards, hereby notifies that the Indian Standards , particulars of which are given in the Schedule hereto annexed have been established on the date indicated against each :-

SCHEDULE

Sl . No. & Year of the

No. Indian Standards Established

(1) (2)

1. IS 15727 (Part 1) : 2007 /1SO 12952-1 : 1998 Textiles- Burning behaviour of bedding items Part 1 General test methods for the ignitability by a smouldering cigarette

2. IS 15727 ( Part 2) : 2007/ISO 12952-2 : 1998 Textiles- Burning behaviour of bedding items Part 2 Specific test methods for the ignitability by a smouldering cigarette

3. IS 15727 (Part 3 ) : 2007/ISO 12952-3 : 1998 Textiles- Burning behaviour of bedding items Part 3 General test methods for the ignitability by a small open flame

4. IS 15727 ( Part 4) : 2007/1SO 12952-4 : 1998 Textiles- Burning behaviour of bedding items Part 4 Specific test methods for the ignitability by a small open flame

5: IS 15758 (Part 1 ) : 2007/ISO 9151 : 1995 Textiles- Protective clothing Part 1 Method of determining of heat transmission on exposure to flame

Date of Established

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

(3)

(4)

September , 2007

September, 2007

September, 2007

September , 2007

September, 2007 7965 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii) ]

(4)

(3)

(2)

(1)

September, 2007 6. IS 15758 (Part 2) : 2007/ISO 6942 : 2002 Textiles- Protective clothing Part 2 Assessment of material assemblies when exposed to source of radiant heat

September , 2007 7. IS 15758 (Part 4) : 2007/ISO 15025 : 2002 Textiles- Protective clothing Part 4 Test Method for limited flame spread

September , 2007 8. IS 15758 (Part 5 ) : 2007/ISO 9185 : 1990 Textiles- Protective clothing Part 5 Assessment of resistance ofmaterials to molten metal splash

September, 2007 9. IS 15760S15760 (Part 2 ) : 2007/ISO 11677-2 : 1994 Textiles machinery arid accessories-Main dimensions of flat steel healds with open end loops-Part 2 J - shaped end loops

September , 207

Superseding IS 10626

10. IS 15760 (Part 3 ) : 2007/ ISO 11677-3 : 1995 Textile- machinery and accessories - 1983 Main dimensions of flat steel healds with open end loops Part 3 Carrying rods for healds with C and J - shaped end loops

September , 2007

Superseding Is 5138 : 1981-

11. JS 15761 (Part 2) : 2007/ISO 96-2 : 1992 Textiles- machinery and accessories Rings and travellers for ring spinning and ring doubling frames Part 2 HZCH-, HZ- and J -rings and their appropriate travellers .

Copyofthese Standards are available for sale with the Bureau of Indian Standars , Manak Bhavan, 9 Bahadur Shah ZafarMarg, New Delhi - 110 002 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: TXD/G -25 ]

M.S. VERMA , Director & Head (Textiles) पेट्रोलियम और प्राकृतिक गैस मंत्रालय नई दिल्ली, 19 सितम्बर , 2007

का.आ. 2785.- केन्द्रीय सरकार को लोकहित में यह आवश्यक प्रतीत होता है कि राजस्थान राज्य में इब्राहिमपुर - धौलपुर पाइपलाईन परियोजना अंतर्गत गेल ( इण्डिया ) लिमिटेड द्वारा प्राकृतिक गैस के परिवहन के लिए एक पाइपलाईन बिछाई जानी चाहिए;

के अधीन भारत के राजपत्र में यथा प्रकाशित इस अधिसूचना की प्रतियाँ साधारण जनता को उपलब्ध करा दी जाती हैं , इक्कीस दिन के भीतर , भूमि के नीचे पाइपलाईन बिछाए जाने के संबंध में , श्री एस. सी. जैन, सक्षम प्राधिकारी , गेल ( इण्डिया ) लिमिटेड , चतुर्थ तल , क्रिस्टल मॉल , ए-3 , सवाई जय सिंह राजमार्ग , बनीपार्क , जयपुर-302016 ( राजस्थान ) को लिखित रूप में आक्षेप भेज सकेगा ।

अनुसूची

तहसील गाँव

जिला

सर्वे न. आर.ओ.यू. अर्जित करने के लिए क्षेत्रफल ( हैक्ट. में) और केन्द्रीय सरकार को उक्त पाइपलाईन बिछाने के प्रयोजन के लिए यह आवश्यक प्रतीत होता है कि उस भूमि में , जिसमें उक्त पाइपलाईन बिछाए जाने का प्रस्ताव है और जो इस अधिसूचना से संलग्न अनुसूची में वर्णित है, उपयोग के अधिकार का अर्जन किया जाए;

4

5

3

2

1

0.0030

153

बटेश्वरकलां

बाड़ी

धौलपुर

0.0040

152

0.0300

100

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

0.0440

101

कोई व्यक्ति, जो उक्त अनुसूची में वर्णित भूमि में हितबद्ध है, उस तारीख से जिसको उक्त अधिनियम की धारा 3 की उपधारा ( 1 ) 7966

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

1

2

3

4

5

1 धौलपुर बाड़ी बटेश्वरकलां 151

0.0060

धौलपुर

194

0.0100

195

0.0580

112

0.0270

107

0.0030

106

0.0250

105

0.0330

183/296 0.3590

183/297 0.0250

183/366 0.1080

योग

0.7350

92

कुहावनी

0.0075

90

0.0075

88

0.0400

501

0.0050

योग

0.0600

583

गढ़ीखिराना

0.0150

598

0.0300

599

0.0150

603

0.1050

602

0.0100

1018

0.0132

597

0.0108

योग

0.1990

170

0.1892

रानपुर

178

0.0540

योग

0.2432

596

अलीगढ़

0.0350

883

0.0600

884

0.0100

890

0.0900

891

0.0200

880

0.0300

878

0.0398

876

0.0370

874

0.0398

योग

0.3616

1040

जरारी धंसुआ

0.0100

1032

0.1210

1031

0.0100

योग

0.1410

70

लखेपुरा

0.0500

67

0.0278

65

0.0676

योग

0.1454

[PART 11-SEC. 3( ii) ] 2

3

4

5

467

बाड़ी पुरा उलावटी

0.0162

योग

0.0162

44

बख्तुपूरा

0.0248.

49

0.0230

53

0.0450

144

0.0100

145

0.0125

146

0.0225

योग

0.1378 कुरी का पूरा 1628/4020 0.0648

योग

0.0648

2301

0.0418 अफजलपुर

2296

0.0100

2295

0.0200

2245

0.0486

2240

0.0020

2237

0.0100

2238

0.0204

2230

0.0400

2213

0.0200

2206

0.0082

योग

0.2210

2215

ध्वजपुरा

0.1890

2216

0.0810

योग

0.2700 मरहोली

14

0.0140

17

0.0080

21

0.0478

22

0.0532

23

0.0060

28

0.00770

40

0.0760

योग

0.2820 अंर्रुआ

400

0.0130

399

0.0146

योग

0.0276

30मीन

पूठपुरा

0.3348

योग

0.3348 सरानी

1345

0.1188

योग

0.1188

405

0.0100

योग

0.0100 7967 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii) ]

District

Village

Tahsil

5

4

3

2.

1

Survey No.

Area to be acquired for R.O.U. ( in Hect .)

0.0700

528

धौलपुर बसई सामंता

धौलपुर

5

4

0.0584

531

3

2

1

0.0300

573

0.0030

Bateshwarkala 153

Badi

Dholpur

0.0980

0.0040

152

584

0,0300

100

0.1584

606

0.0440

101

0.0450

605

0.0060

151

0.0160

0.0100

194

604

0.0580

195

0.0702

566/2

0.0270

112

0.5460

0.0030

योग

107

0.0250

106

0.0100

248

सुरजपुरा

0.0330

105

0.0208

247

0.3590

183/296

0.0250

0.0040

312

183/297

0.1080

183/366

0.0100

316

0.7350

0.0448

Total

योग

0-3618

0.0075

712

92

Kuhawni

नरपुरा

0.0075

90

0-1188

719

0.0400

88

0.4806

0.0050

योग

501

[फा. सं. एल-14014/9/07/जी.पी. ]

0.0600

Total एस. बी. मण्डल , अवर सचिव

0.0150

583

Gadi Kirana

MINISTRY OF PETROLEUM AND NATURALGAS

0.0300

598

0.0150

599 New Delhi , the 19th September 2007

0.1050

603

0.0100

602

0.0132

1018

0.0108

597

0.1990

Total S. O. 2785. Whereas it appears to the Central Government that it is necessary in the public interest that for the transportation of natural gas through Ibrahimpur Dholpur pipeline project in the State of Rajasthan , a pipe- line should be laid by GAIL(India ) Limited;

0.1892

Ranpur

0.0540

170 178

0.2432

Total

0.0350

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

Aligarh

0.0600

883

0.0100

884

0.0900

890

0.0200

891

0.0300

880

0.0398

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

0.0370

876

0.0398

874

0.3616

Total

0.0100

1040

Zarari

0.1210

1032

Ghesua

0.0100

1031

0.1410

Total Any person interested in the land described in the said Schedúle may , within twenty one days from the date on which the copies of the notification issued under sub- section (1) of Section 3 of the said Act , as published in the Gazette of India are made available to the general public, object in writing to the laying of the pipeline under the land to Shri S. C. Jain , Competent authority, GAIL (India) Limited, 4th Floor , Crystal Mall , A-3 , Sawai Jai Singh High- way,Banipark, Jaipur -302016 (Rajasthan).

7968

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7, 1929

1

2

3

4

5 Dholpur Badi

70

Lakhepura

0.0500

67

0.0278

65

0.0676

Total 0.1454

Pura Ulawati 467

0.0162

Total 0.0162

44

Bakhtupura

0.0248

49

0.0230

53

0.0450

144

0.0100

145

0.0125

146

0.0225

Total 0.1378

Kuri Ka 1628/4020 0.0648

Pura

Total 0.0648

2301

Afjalpur

0.0418

2296

0.0100

2295

0.0200

2245

0.0486

2240

0.0020

2237

0.0100

2238

0.0204

2230

0.0400

2213

0.0200

2206

0.0082

Total 0.2210

2215

0.1890 Dhwazpura

2216

0.0810

Total 0.2700 Marholi

14

0.0140

17

0.0080

21

0.0478.

22

0.0532

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

2

3

4

5 Marhali

23

Dholpur Badi

0.0060

28

0.0770

40

0.0760

Total 0.2820 Arrua

400

0.0130

399

0.0146

Total 0.0276 Dholpur Puthpura 301 M 0.3348

Total 0.3348

1345

Dholpur Srani

0.1188

Total 0.1188

405

Dholpur Bhilganwa

0.0100

Total 0.0100 Dholpur Basai Samanta528

0.0700

531

0.0584

573

0.0300

584

0.0980

606

0.1584

605

0.0450

604

0.0160

566/2

0.0702

Total 0.5460 Dholpur

0.0100 Surajpura 248

247

0.0208

312

0.0040

316

0.0100

Total 0.0448 Dholpur Narpura 712

0.3618

719

0.1188

Total 0.4806

[F. No. L-14014/9/07 -G.P . ] S. B. MANDAL, Under Secy .

नई दिल्ली, 24 सितम्बर , 2007

का. आ. 2786. - केन्द्रीय सरकार को ऐसा प्रतीत होता है कि लोकहित में यह आवश्यक है कि हरियाणा राज्य में पानीपत से पंजाब राज्यके नाभा होते हुए पंजाब राज्य के जालंधर तक लिक्विफाइड पैट्रोलियम गैस के परिवहन के लिए इंडियन ऑयल कार्पोरेशन लिमिटेड द्वारा एक पाइपलाइन बिछाई जानी चाहिए;

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

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

कोई व्यक्ति, जो उक्त अनुसूची में वर्णित भूमि में हितबद्ध है , उस तारीख से जिसको , भारत के राजपत्र में यथा प्रकाशित इस अधिसूचना की प्रतियाँ साधारण जनता को उपलब्ध करा दी जाती हैं, इक्कीस दिन के भीतर , भूमि के भीतर पाइपलाइन बिछाए जाने के लिए 7969

भारत का राजपत्र सितम्बर 29 , 2007/आश्विन 7, 1929

[ भाग II- खण्ड 3 (ii) ]

उपयोग के अधिकार के अर्जन के लिए, श्री गगनदीप सिंह , सक्षम प्राधिकारी ( पंजाब ) , इण्डियन ऑयल कॉर्पोरेशन लिमिटेड, मकान नं. 23 , खुखरेन कालोनी , खालसा स्कूल रोड , खन्ना , लुधियाना, पंजाब , को लिखित रूप में आक्षेप भेज सकेगा ।

तहसील गाँव

जिला

मुस्तील संख्या

हदबस्त संख्या

5

4

3

2

1

29

संगरूर 1. मुंशीवाला

संगरुर

35

2. नदामपुर

22

3. बिम्बड़ी

50

195

नाभा

पटियाला

1. रामगढ़

202

2. बौरा कलां

211

3. उधा

107

4. बाबरपुर

95

5. पाहलियां कलां

21 अमलोह 1. रायपुरचोबदारां 88

फतेहगढ़

साहेब

264

1. रोहनु कलां

लुधियाना खन्ना

245

2.कोटला ढ़क

55

164

3. देहरु

4

89

समराला 1. भरथला

लुधियाना

79

2. गढ़ी तरखाना

अनुसूची

क्षेत्रफल

खसरा/

वर्गमीटर

एयर

हेक्टेयर

किला संख्या

9

8

7

6

02

16

00

1553-1554/1338/326

28

17

00

1766/384

17

07

00

564/444

43

08

00

565/444

00

51

00

15/3

76

00

00

107

69

00

01

1097

01

00

01

54

26

01

00

627

17

07

00

679/410

07

06

00

2

25

00

00

8

01

01

00

9/1

87

09

00

9/2

02

02

00

10/2

29

00

03

11

08

60

00

12

85

08

00

13

58

06

00

18/1

29

03

00

18/2

62

10

00

19

51

00

00

22

00

51

00

23

28

02

00

44

31

05

00

317

30

04

00

320

01

77

00

79

26

01

00

139

26

00

01

434

76

00

00

21

18

15

00

18

77

01

00

397

[फा. सं. आर-25011/ 13/2007 - ओ.

एस. के. चितकारा , अवर सचिव

New Delhi , the 24th September , 2007

S.O. 2786.-Whereas it appears to the Central Government that it is necessary in the public interest that for the transportation of Liquefied Petroleum Gas from Panipat in the State of Haryana to Jallandhar in the State of Punjab via Nabha in the State of Punjab , a pipeline should be laid by the Indian Oil Corporation Limited;

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

7970

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINΑ 7, 1929

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

Any person interested in the land described in the said Schedule may, within twenty one days from the date on which the copies of the notification issued under sub- section ( 1 ) of Section 3 of the said Act, as published in the Gazette of India are made available to the general public, object in writing to the acquisition of the right of user therein for laying of the pipeline under the land , to Shri Gagandeep Singh , Competent Authority (Punjab ), Indian Oil Corporation Limited, H. No. 23 , Khukhrain Colony , Khalsa School Road, Khanna, Ludhiana, Punjab .

SCHEDULE

District Tehsil Village

Hadbast No.

Mushtil No. 1

2

3

4

5 Sangrur Sangrur 1. Munshiwala 29

35

2.Nadampur

3. Bimbri

22

Patiala Nabha

195

1.Ramgarh

50

2. Bauran Kalan 202

3. Udha

211

107

4.Baberpur

5. Phalian Kalan 95

Fatehgarh Amloh

88

21

1.Raipur

Sahib

Chaubdaran

Ludhiana Khanna

264

1. Rohano Kalan

2. Kotla Dhak 245

3. Deheru

164

55 Ludhiana Samrala 1. Bharthala

89

4

2. Garhi Tarkhana 79

Khasra/Killa No.

Area

Hectare Are Square Metre 6

7

8

9 1553-1554/1338/326

00

16

02 1766/384

00

17

28 564/444

00

07

17 565/444

00

08

43 15/3

00

00

51 107

00

00

76 1097

00

01

69 54

00

01

01 627

00

01

26 679/410

00

07

17 2

00

06

07 8

00

00

25 9/1

00

01

01 9/2

00

09

87 10/2

00

02

02 11

00

03

29 12

00

08

60 13

00

08

85 18/1

00

06

58 18/2

00

03

29 19

00

10

62 22

00

00

51 23

00

00

51 44

00

02

28 317

00

05

31 320

00

04

30 79

00

01

139

00

01

26 434

00

01

26 21

00

00

76 18

00

15

18 397

00

01

[F. No. R-25011/13/2007 -OR- I ] S. K. CHITKARA, Under Secy.

7971 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

[भाग II- खण्ड 3 (ii) ]

(5)

(3) (4)

(2)

(1)

नई दिल्ली, 27 सितम्बर , 2007

57

00

0

158

44

02

0

153/195

77

00

0

153/187

41

00

0

81

32

04

0

50

12

02

0

86

00

01

0

162/188

[फा. सं. एल-14014/30/2006/जी.पी. ]

एस. बी. मण्डल, अवर सचिव का.आ. 2787.-केंद्रीय सरकार ने पेट्रोलियम और प्राकृतिक गैस मंत्रालय के का.आ. 3806 दिनांक 18-9-2006 और का.आ. 972दिनांक 02-04-2007 द्वारा पेट्रोलियम और खनिज पाइपलाइन्स (भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 ( 1962 का 50 ) ( जिसे उसके पश्चात् उक्त अधिनियम कहा जायेगा ) की धारा 3 ( 1 ) के अधीन अधिसूचना प्रकाशित कर, दादरी ( उत्तर प्रदेश राज्य) से पानीपत ( हरियाणा राज्य ) तक, प्राकृतिक गैस के परिवहन के लिए इंडियन ऑयल कॉर्पोरेशन लिमिटेड द्वारा " आर- एलएनजी स्पर पाइपलाइन " के संबंध में उक्त अधिसूचना से संलग्न अनुसूची में निर्दिष्ट तहसील बड़ौत जिला बागपत ( उत्तर प्रदेश राज्य ) की भूमि में उपयोग के अधिकार के अर्जन के अपने आशय की घोषणा की थी ।

New Delhi , the 27th September , 2007 और, उक्त अधिसूचना की प्रतियां जनता को क्रमशः दिनांक 25-11-2006 या उससे पूर्व और 22-6-2007 या उससे पूर्व उपलब्ध करा दी गई थीं ।

हुए । और, सक्षम प्राधिकारी को जनता से कोई आक्षेप प्राप्त नहीं

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

और , केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात् इस अधिसूचना से उपाबद्ध अनुसूची में उपयोग का अधिकार अर्जित करने का विनिश्चय किया है ।

S.O. 2787.--Whereas by notification of Government of India in the Ministry of Petroleum and Natural Gas published in the Gazette of India vide number S.O. 3806 dated the 18th September, 2006 and S.O. 972 dated the 2nd April, 2007 issued under sub- section (1 ) of Section 3 ofthe Petroleum andMinerals Pipelines (Acquisition of Right of user in Land) Act, 1962 (50 of 1962), (herein after referredto as the said Act ), the Central Government declared its intension to acquire the Right of User in the land specified in the schedule appended to this notification for the purpose of laying pipelines for the transportation of Natural Gas from Dadri in the state of Uttar Pradesh to Panipat in the State ofHaryana by the Indian Oil Corporation Limited for implementing the " R - LNG Spur pipeline from Dadri to Panipat " in Tehsil Baraut, District Baghpat , in Uttar Pradesh State;

Andwhereas , copies of the said gazette notification were made available to the public on or before 25-11-2006 and on or before 22-6-2007 respectively.

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

Andwhereas no objections were received from the public.

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

और , केन्द्रीय सरकार उक्त अधिनियम की धारा 6 की उप- धारा ( 4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह निर्देश देती है कि उक्त भूमि में उपयोग का अधिकार केन्द्रीय सरकार में निहित होने की बजाय सभी विल्लंगमों से मुक्त होकर इंडियन ऑयल कॉर्पोरेशन लिमिटेड में निहित होगा ।

अनुसूची

And whereas the Central Government after considering the said report is satisfied that the Right of User in the land specified in the Schedule appended to this notification acquired;

राज्य : उत्तर प्रदेश

जिला बागपत

तहसील: बड़ौत

क्षेत्रफल

खसरा संख्या

गांव का नाम

वर्गमीटर

हेक्टेयर एयर

Now, therefore, in exercise of 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 isacquired;

(5)

(3) (4)

(2)

(1)

60

165

1. जागोस खादर

82

0 00

164

33

0 01

162

54

00

0

160

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 Users in the said land shall instead of vesting in the Central Government , vest from the date of publication of this declaration in the IndianOil Corporation Limited free from all encumbrances .

3855 G1/2007-5 7972

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

[PART 11-SEC. 3 ( ii ) ] SCHEDULE

Tehsil : Baraut District : Baghpat State : Uttar Pradesh

Name ofVillage

Area

Khasra No.

अतः , अब , केन्द्रीय सरकार उक्त अधिनियम की धारा 6 की उप - धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए घोषणा करती है कि इस अधिसूचना से उपाबद्ध अनुसूची में विनिर्दिष्ट भूमि में पाइपलाइन बिछाने के उपयोग का अधिकर अर्जित किया जाता है । Hectare Are Square Meter

(1)

(2)

(3) (4)

(5)

और , केन्द्रीय सरकार उक्त अधिनियम की धारा 6 कीं उप- धारा (4 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए यह निर्देश देती है कि उक्त भूमि में उपयोग का अधिकार केन्द्रीय सरकार में निहित होने की बजाय सभी विल्लंगमों से मुक्त होकर इंडियन ऑयल कॉर्पोरेशन लिमिटेड में निहित होगा ।

1. Jagos Khadar 165

0 00

60

अनुसूची

164

0

00

82

162

0 01

33

तहसील : खेकड़ा जिला बागपत राज्य : उत्तर प्रदेश 160

0 00

54

गांव का नाम

खसरा संख्या

क्षेत्रफल 158

0 00

57

हेक्टेयर एयर वर्गमीटर 153/195

0 02

44

(1)

153/187

(2)

(4) 0 00

(3)

(5)

77

81

0 00

41

1. खैला

109

0 01

86 50

0 04

32

110

0 01

43 86

0 02

12

83

0 00

36 162/188

0 01

00

[फा. सं. एल-14014/30/2006-जी.पी. ] [F. No. L- 14014/30/2006-G.P. ]

एस. बी. मण्डल , अवर सचिव S. B. MANDAL, Under Secy .

New Delhi , the 27th September , 2007 नई दिल्ली, 27 सितम्बर , 2007

का.आ. 2788.-केंद्रीय सरकार ने पेट्रोलियम और प्राकृतिक गैस मंत्रालय के का.आ. 3807 दिनांक 18-9-2006 और का.आ. 969 दिनांक 2-4-2007 द्वारा पेट्रोलियम और खनिज पाइपलाइन्स ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 ( 1962 का 50 ) ( जिसे उसके पश्चात् उक्त अधिनियम कहा जायेगा ) की धारा 3 ( 1 ) के अधीन अधिसूचना प्रकाशित कर , दादरी ( उत्तर प्रदेश राज्य) से पानीपत ( हरियाणा राज्य) तक, प्राकृतिक गैस के परिवहन के लिए इंडियन ऑयल कॉर्पोरेशन लिमिटेड द्वारा " आर- एलएनजी स्पर पाइपलाइन " के संबंध में उक्त अधिसूचना से संलग्न अनुसूची में निर्दिष्ट तहसील खेकड़ा, जिला बागपत ( उत्तर प्रदेश राज्य ) की भूमि में उपयोग के अधिकार के अर्जन के अपने आशय की घोषणा की थी ।

S.O. 2788. Whereas by notification of Government of India in the Ministry of Petroleum and Natural Gas published in the Gazette of India vide number S.O. 3807 dated the 18th September 2006 and S.O. 969 dated the 2nd April2007 issued under Sub- section (1 ) of Section 3 of the Petroleum and Minerals Pipeline (Acquisition of Right of User in Land) Act , 1962 ( 50 of 1962) , (hereinafter referredto as the said Act) , the Central Government declared its intension to acquire the Right of User in the land specified in the schedule appended to this notification for the purpose of laying pipeline for the transportation of natural Gasfrom Dadri in the state of Uttar Pradesh to Panipat in the State of Haryana by the Indian Oil Corporation Limited for implementing the "R- LNG Spur pipeline from Dadri to Panipat" in Tehsil Khekra, District Baghpat, in Uttar Pradesh State;

और , उक्त अधिसूचना की प्रतियां जनता को क्रमशः दिनांक 25-11-2006 या उससे पूर्व और 22-6-2007 या उससे पूर्व उपलब्ध करा दी गई थीं ।

And, whereas , copies of the said gazette notification were made available to the public on or before 25-11-2006 and on or before 22-6-2007 respectively.

हुए । और, सक्षम प्राधिकारी को जनता से कोई आक्षेप प्राप्त नहीं

And, whereas , no objections were received by the Competent Authority.

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

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

और , केन्द्रीय सरकार ने उक्त रिपोर्ट पर विचार करने के पश्चात इस अधिसूचना से उपाबद्ध अनुसूची में उपयोग का अधिकार अर्जित करने का विनिश्चय किया है ।

And , whereas , the Central Government after considering the said report is satisfied that the Right of User in the land specified in the Schedule appended to this notification should be acquired;

7973 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii) ]

New Delhi, the 24th September , 2007 Now, therefore , in exercise of 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 isacquired;

S.O. 2789.- In exercise of the powers conferred by Sub-section (I ) of Section 3 and Sub- section ( 1) of Section 6ofthe Petroleum and Minerals Pipelines (Acquisition of Right of User in Land) Act , 1962 (50 of 1962) , the Central Government hereby makes the following amendments in the notifications of Government of India in the Ministry of Petroleum and Natural Gas as under namely :-- 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 Users in the said land shall instead of vesting in the Central Government, vest from the date of publication of this declaration in the Indian Oil Corporation limited free from all encumbrances .

SCHEDULE

1. In S.O. No. 634 dated 21st February, 2005 published in Gazette of India Part II , Section 3 , Sub-section (ii ) dated February 20 -February 26, 2005 at page 1813 in respect of Village Bolo Ka Sanvata in column No. 2 Survey No. " 839 " may be read as " 837 " .

State : Uttar Pradesh

Tehsil : Khekra District : Baghpat

Area

Khasra No.

Name ofVillage

Hectare Are Square Meter

2 In S.O. No. 3015 dated 24th August , 2005 published in Gazette of India Part II , Section 3, Sub-section (ii )dated August , 21 -August 27, 2005 at page 9589 in respect of Village Bolo Ka Sanvata in column No. 2 Survey No. " 839" be read as " 837 " .

(5)

(4)

(3)

(2)

(1)

[F. No. R-25011 /31/2004- O.R. -I ] S. K. CHITKARA, Under Secy.

86

01

0

109

1. Khaila

43

01

0

110

नई दिल्ली, 27 सितम्बर , 2007

36

0 00

83

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

नई दिल्ली , 24 सितम्बर , 2007

का.आ. 2790.-केंद्रीय सरकार ने पेट्रोलियम और खनिज पाइपलाइनस ( भूमि से उपयोग के अधिकार का अर्जन ) अधिनियम, 1962 ( 1962 का 50 ) की धारा 3 की उप - धारा ( 1 ) के अधीन जारी की गई भारत सरकार के पेट्रोलियम और प्राकृतिक गैस मंत्रालय की अधिसूचना, का. आ. संख्या और तारीख की नीचे दी गई अनुसूची में यथा उल्लेिखित तारीख की अधिसूचना, का.आ. संख्या द्वारा उन अधिसूचनाओं से संलग्न अनुसूची में विनिर्दिष्ट भूमि के अधि- कार के अर्जन का अधिकार प्राप्त किया था ।

का.आ. 2789.-केंद्रीय सरकार , पेट्रोलियम और खनिज पाइपलाइन्स ( भूमि में उपयोग के अधिकार का अर्जन ) अधिनियम , 1962 ( 1962 का 50 ) की धारा 3 की उप- धारा ( 1 ) व धारा 6 की उप- धारा ( 1 ) द्वारा प्रदत्त शक्तियों का प्रयोग करते हुए , भारत सरकार के पेट्रोलियम और प्राकृतिक गैस मंत्रालय की भारत के राजपत्र में प्रकाशित अधिसूचनाओं से निम्नलिखित संशोधन करने का निर्देश देती है;

और केन्द्रीय सरकार ने उक्त अधिनियम की धारा 6 की उप - धारा ( 4 ) द्वारा प्रदत शक्तियों का प्रयोग करते हुए , उक्त भूमियों में जो सभी विल्लंगमों से मुक्त है , उपयोग का अधिकार इंडियन ऑयल कोर्पोरेशन लिमिटेड में निहित किया था । (1) का.आ. 634 , दिनांक 21 फरवरी , 2005 , भारत के राजपत्र II , खण्ड 3 , उप- खण्ड ( ii ) दिनांक फरवरी 20-फरवरी 26 , 2005 के पृष्ठ 1800 में प्रकाशित गाँव बोलों का सांवता के सम्बन्ध में कॉलम 2 में अंकित खसरा संख्या " 839 " के स्थान पर खसरा संख्या " 837" पढ़ा जावे ।

और सक्षम प्राधिकारी ने केन्द्रीय सरकार को रिपोर्ट दी है कि गुजरात राज्य में कोयली से दहेज पाइपलाइन के मार्गाधिकार में अनुसूची में उक्त ग्रामों की भूमियों में पाइपलाइन बिछाई जा चुकी है । अतः इन भूमियों में प्रचालन की समाप्ति की जाए जिसका संक्षिप्त विवरण इस अधिसूचना की संलग्न अनुसूची में विनिर्दिष्ट किया जाता है ।

(2) का. आ. 3015 दिनांक 24 अगस्त 2005 , भारत के राजपत्र II , खण्ड 3 , उप- खण्ड ( ii ) दिनांक अगस्त 21-अगस्त 27 , 2005 के पृष्ठ 9577 में प्रकाशित गांव बोलों का सांवता के सम्बन्ध में कॉलम 2 में अंकित खसरा संख्या " 839 " के स्थान पर खसरा संख्या " 837 " पढ़ा जावे ।

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

[फा. सं. आर-25011/31/2004- ओ.आर. - 1 ] एस. के. चिटकारा , अवर सचिव 7974

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7, 1929

[PART II-SEC. 3(ii) ]

अनुसूची

क्र.सं. का.आ.नं. एवं दिनांक

गाँव का नाम

तालुका

जिला

राज्य

प्रचालन की समाप्ती

कीतारीख 1

2

3

4

5

6

7 1. 3743दिनांक14-10-2005 कोयली

वडोदरा

वडोदरा

गुजरात

22-07-2006 शेरखी

सेवासी

महापुरा

अंपाड

भायली

रायपुरा

2. 3747दिनांक14-10-2005

जासपुरा

पादरा

वडोदरा

गुजरात

22-07-2006 पादरा-1

पादरा-2

पादरा-3

पादरा-4

ताजपुरा

लतीपुरा

पीपली

साधी

आंती-1

आंती-2

भदारा

अंबाडा-1

अंबाडा-2

गयापुरा

ठीकरीया

कांदा

सोखडाराघु

3. 3746 दिनांक 14-10-2005 वीरजय -1

करजण

वडोदरा

गुजरात

22-07-2006 वीरजय-2

उमज

4. 3745 दिनांक 14-10-2005

वासणा

आमोद

भरुच

गुजरात

22-07-2006 मंजोला

कोबला

वेडचा

चकलाद

अदवाला

रोध

आमोद-1

आमोद-2 7975 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II-खण्ड 3 (ii) ]

7

6

4

5

3

2

1

भीमपुरा

आछोड-1

आछोड-2

इटोंला

रोंजा

टंकारीया-1

रोंजा

टंकारीया-2

रोंजा

टंकारीया-3

22-7-2006

भरुच

वागरा

गुजरात

बदलपुर

5. 3744 दिनांक 14-10-2005

पदलपुर/चांचवेल

केसवान -1

केसवान-2

ट्रंकाल

अंभेल

गोलादरा

नरनावी

पादरीया-जलालपुर

कडोदरा

दहेज

22-07-2006

वडोदरा

गुजरात

पादरा

ताजपुरा

1. 848 दिनांक 21-03-2007

पिपली

आंती-2

22-07-2006

भरूच

गुजरात

आमोद

आछोद-1

2. 847 दिनांक 21-03-2007

आछोद-2

इंटोला

रोजा टकारीया-1

22-07-2006

भरूच

गुजरात

वागरा

बदलपुर

3. 846 दिनांक 21-03-2007

पडलपुर/चांचवेल

केशवान-1

अंभेल

गोलाद्रा

दहेज

[सं. आर-25011/ 10/2007- ओ.आर. - 1 ]

एस. के. चिटकारा , अवर सचिव 7976

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

[PART 11-SEC . 3(ii) ] New Delhi , the 27th September, 2007

S. O. 2790. Whereas ,by the notifications of the Government of India in the Ministry of Petroleum and Natural Gas S.O. number and date as mentioned in the schedule below issued under Sub- section ( 1) of Section 6 of the Petroleum and Minerals Pipelines (Acquisition of Right of User in Land ) Act, 1962 (50 of 1962), the Central Government acquired the right of user in the land specified in the Schedule appended to those notifications,

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

Andwhereas , the Competent Authority has made a report to the Central Government that the pipeline for the purpose oftransport of petroleum products from Koyali to Dahej through the villages in the State of Gujarat mentioned in the Schedule has been laid in the said lands, so the operation may be terminated in respect of the land description of which in brief is specified in the schedule annexed to this notification;

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

SCHEDULE

S.O. No. & Date

Taluka

Name ofVillage

District

State

Sr. No.

Date of Termination ofOperation 1

2

3

4

5

6

7

(1) 3743 dt. 14-10-2005

"Vadodara

Koyali

Vadodara

22-7-2006

Gujarat

Sherkhi

Sevasi

Mahapura

Bhaili

Ampad Raipura

(2) 3747 dt. 14-10-2005

Padra

Jaspur

Vadodara

22-7-2006

Gujarat

Padra - 1

Padra-2

Padra-3

Padra-4

Tajpura

Latipura

Pipli

Sadhi

Aanti - 1

Aanti-2

Ambada- 1

Ambada- 2

Bhadara Gayapura Thikariya Kanda

Sokhada-Raghu भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II-खण्ड 3 ( ii) ]

4

3

2

1

Karjan

Virjai - 1

(3) 3746 dt. 14-10-2005

Virjai-2

Umaj

Amod

Vasna

(4) 3745 dt. 14-10-2005

Manjola

Kobla

Vedcha

Chaklad

Adwala

Rondh

Amod-1

Amod-2

Bhimpura

Achhod- 1

Achhod-2

Intola

Roza

Tankariya- 1

Roza

Tankariya -2

Roza

Tankariya -3

Vagra

Badalpur

(5) 3744 dt. 14-10-2005

Padalpur/

Chanchvel

Keshwan- 1

Keshwan- 2

Trankal

Ambhel

Goladara

Narnavi

Padariya

(Jalalpur)

Kadodara

Dahej

Padra

Tajpura

1. 848 dated 21-03-2007

Pipli

Aanti-2

Amod

Achhod- 1 2 847 dated 21-03-2007

Achhod-2

Intola

Roza Tankariya- 1

Vagra

Badalpur 3. 846 dated 21-03-2007

Padalpur/Chanchvel

Keshwan- 1

Ambhel

Goladara

Dahej

7977

7

6

5

22-7-2006

Vadodara Gujarat

22-7-2006

Bharuch Gujarat

22-7-2006

Bharuch Gujarat

22-07-2006

Vadodara Gujarat

22-07-2006

Bharuch Gujarat

22-07-2006 Bharuch Gujarat

[No. R-25011/10/2007 -OR -I ]

S. K. CHITKARA, Under Secy .

7978

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 / ASVINA 7 , 1929

[PART 11-SEC. 3(ii) ]

AWARD

श्रम एवं रोजगार मंत्रालय नई दिल्ली , 28 अगस्त, 2007

का.आ. 2791.- 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 102/2004 ) को प्रकाशित करती है , जो केन्द्रीय संरकार को 28-8-2007 को प्राप्त हुआ था ।

1. The Central Government, Ministry of Labour vide OrderNo. L- 12012/306/98 - IR (B - I ) dated 02-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has takenthe dispute on its file as CGID No. 45/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter statement respectively. After the constitution of this CGIT - cum- Labour Court , the said dispute has been transferredto this Tribunal for adjudication and this Tribunal has numbered itas I.D. No. 102/2004 .

[सं. एल -12012/306/1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

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

MINISTRY OF LABOUR AND EMPLOYMENT New Delhi, the 28th August, 2007

"Whether the demand of the workman Shri L. Murugesan , wait list No. 341 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so , to what relief the said workman is entitled ? "

S.O. 2791. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 102/ 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 28-8-2007 .

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

[No. L- 12012/306/ 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. 102/2004

[Principal Labour Court CGID No. 45/99]

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

BETWEEN

Sri L. Murugesan

: I Party/Petitioner

AND

TheAssistant General Manager , II PartyManagement State Bank of India , Region-I , Trichirapalli.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram ,

Authorised

Representative .

For the Management : M/s . V. Sundar Anandan , Advocates .

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 26-06-87. During 1985-86 , the Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filedby State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank , in addition to its counter. filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable. theRespondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the 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 joinat the branch where he initially worked as a class IV employee . From 26-06-87 , the Petitioner has been working as atemporary messenger and some times performing work in other branches also . While working on temporary basis in Trichy Z.O. branch , another advertisement by the 7979 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii) ]

Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working at as such , the Manager ofthe branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non -employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 andto regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since accordingto the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal. Further , the settlements are repugnant to Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments, leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either bypayment 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 bencfits .

seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87,16-07-88, 07-10-88, 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3) ofI.D. Act . In terms thereof, the Petitioner was considered forpermanent appointment as per his eligibility alongwith similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 341 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 submittedto selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement, employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category; (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements, out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 341 , 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 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 notbe absorbed as he was positioned down in

3855 G1/2007-6 7980

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 /ASVINA 7, 1929

[PART 11-SEC. 3( ii ) ]

(1) "Whether the demand of the Petitioner in Wait ListNo. 341for 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:

Establishment ( Conferment of Permanent Status to Workmen) Act, 1981 does not applyto Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correctto say that the Petitioner was discharging the work of permanent messenger . As per settlements, vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment ofdaily wages/ casual labour. Further, for circle of Chennai wait list of daily wages was not finalized and hence not published and there is only one wait list for the appointment of temporary employees . After the expiry of wait list, the Petitioner has no claim for permanent absorption. Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis.After engaging them intermittently for some years, the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Union had filed a Writ Petitionbefore the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits.

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

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 (1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules of the Respondent /Bank, recruitment of class IV staff in the Respondent /Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91. It is falseto allege that the settlements are contrary to the rights 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 7981 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग I1- खण्ड 3 (ii) ]

settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. MI, M3 and M4 respectively. But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement. Further , accordingto MW1 wait list under Ex . M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard 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 asperBipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis. In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat onc class and their action undoubtedly amounts to violation of Article 14 ofConstitution of India . ' Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with uncquals . Itisfurther contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex. M10 comprises of both messengerial and non- messengerial candidates. While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categorics . But , Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait list is not inconformity with the instructions of Ex . M2 and non - preparation of separate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex. W2 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 . M10does not carry par iculars 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 heen 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 exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all. Further, they have invoked the relevant provisions of Chapter V-A ofthe I.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contendedthat in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the 1.D. Act providing for retrenchment is not enacted only for the benefit of the workmento whom section 25F applies but for all cases of retrenchment . Therefore, the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character. Further , a combined study of Ex.MI and the averments of 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 , swcepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex . W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex.W2 four types ofwaiting lists have to be prepared. But the Respondent/ Bank has alleged to have prepared only one wait list for each module as per Ex . M 10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW I is unable to say as to when the wait list Ex. M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based on the 7982

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 / ASVINA 7, 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 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 of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since the Respondent /Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months. He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression ' actually worked under the employer' cannot mean that those days onlywhen the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc " It is further, argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank'scircular 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 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.

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 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 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 inthe 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 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 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 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 7983 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3 (ii) ]

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 application as it will be binding on all workmen ofthe establishment . Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. "He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate 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 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 itis contended that mere wording of reference is not decisive in the matter of tenability of a reference and he reliedon the rulings reported in 1998 LABIC345 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 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 heworked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and isbinding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further , he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same . To that extent, it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that "there may be exceptional cases, where there may be allegations ofmala fides, fraud or even corruption or other inducements. But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 1LLJ 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 7984

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[PART II-SEC. 3 (ii)] 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 again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAG NATHAN ORIENT PAPERMILLS Vs. INDUSTRIAL TRIBUNAL & ORS. wherein the Madhya Pradesh High Court has held that " the Tribunal eannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS, wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions, the representative for the Petitioner argued that though in the reference, it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore, this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore, I find this Tribunal is entitled to go into the question whether the relief prayed forby the Petitioner can be given to him or not ? But, I find that the settlement was validly entered into between the Respondent /Bank and Federation and since it is not questioned by any of the unions of the Respondent/Bank, I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has

been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V. VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy. " In that case, pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number ofbottom personswere removed from the select list and the remaining selectées were given appointments according to their comparative merits. In which, the Supreme Court has held that " in such eircumstances , 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 objectwithwhich the panel was prepared and the fact that itwas a yearly panel expiring on 6-2-98, we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry ofthe panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore, the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that" candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions, learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances, after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now comingto the direction that all those ad- hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad-hoc/ 7985

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7,1929

[भाग II-खण्ड 3( ii) ]

ORS. wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore , cannot be 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 readyto establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even 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 timebeyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Courtto prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right. " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment withopen eyes. It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so, it willbe creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms 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 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 sponsoredby Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post at the time of his appointment ; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of an ad - hoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one. From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation ofthese employees whose entry itself was illegal and void isconcerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad -hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amountto decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to 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 7986

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules. " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD . AND OTHERS Vs. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , isnot a mode of appointment and if appointment is made without following the rules, the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise. " Further , inCDJ 2006 SC395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "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 , 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 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. "

[PART II-SEC. 3(ii)] entered into between the Respondent/Bank and Federation, at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the waitlist. Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even corruption or other inducements. Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent /Bank has got sanctioned posts for temporary employees to be absorbed, 1 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 inthe 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 toclaim regularisation or reinstatement in the Respondent/ Bank as alleged by him. Therefore , I find this point against thePetitioner .

Point No.2 :

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

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

21. Thus, the reference is answered accordingly. K. JAYARAMAN, Presiding Officer Witnesses Examined:-

For the Petitioner

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.

WW1 Sri L. Murugesan WW2 Sri V. S. Ekambaram For the Respondent MWI 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 to preparation of wait list and also settlements

Description

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

7987 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3 (ii ) ]

Description

Date

Ex. No.

Date

Description

Ex. No.

31-03-97

W18

W2 20-04-88

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

Feb. 2005

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

W19

W3 24-04-91

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

13-02-95

W20

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

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

W4 01-05-91

09-11-92

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

W21

W5 20-08-91

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

W22 09-07-92

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

Xerox copy of the minutes of Bipartite meeting.

W6 15-03-97

W23 09-07-92

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

W7 25-03-97

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

W24 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.

Nil

W8

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

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

W9 24-06-88 Xerox copy of the service certificate issued by Kailasapuram Branch .

For the Respondent/Management :--

W10 03-08-96

Description

Date

Ex. No.

Xerox copy of the service certificate issued by Trichy Z. O.Branch .

M1

Xerox copy of the settlement .

17-11-87

W11 Nil

M2

Xerox copy of the settlement.

16-07-88

M3

Xerox copy of the settlement .

27-10-88

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

Xerox copy of the settlement .

09-01-91 M4

W12 Nil

M5

Xerox copy of the settlement.

30-07-96

Xerox copy ofVol . III of Reference book onStaffmatters upto 31-12-95.

M6 09-06-95

06-03-97

W13

Xerox copy of the minutes of conciliation proceedings.

M7 28-05-91

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

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

06-03-97

W14

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

Xerox copy ofthe call letter fromMadurai zonal office For interview of messenger post-K. Subburaj .

M9 10-07-99

W15 06-03-97

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

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

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

17-03-97

W16

Xerox copy ofthe service particulars - J. Velmurugan .

M11 25-10-99

26-03-97

W17

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

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

3855 G1/2007-7 7988

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

[PART II-SEC. 3( ii )] नई दिल्ली, 28 अगस्त, 2007

the dispute on its file as CGID No. 46/99 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. 103/2004 .

का.आ. 2792. 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 103/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था ।

follows: 2. The Schedule mentioned in that order is as [सं. एल-12012/307/1998- आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 28th August , 2007

"Whether the demand of the workman Shri P. Velu wait list No. 455 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ? "

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

S.O. 2792. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 103/ 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 28-8-2007 .

[No. L- 12012/307/ 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. 103/2004

[Principal Labour Court CGID No. 46/99]

(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 P.Velu

: 1 Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative .

For the Management : Mr. F.B. Benjamin George , Advocate

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/307/ 98 - IR (B -I) dated 02-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

The Petitioner was sponsored by Employment Exchange for the post of sub- staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination. He was appointed on temporary basis at Avoor branch from August, 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 Avoor 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 August , 1983 , the Petitioner has beenworking as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Avoor branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported tobe in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 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 7989 भारत का राजपत्र: सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3(ii) ]

the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number of days workedby Petitioner were treated as of no consequence , since according to the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the Respondent/Bank has been Regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing himto work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence, for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/Bank with all attendant benefits .

17-11-87,16-07-88,07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3) of I.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 457 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 , cannotturn around and claim appointment. Such of those temporary employees who were appointed were engaged for more number of days and hence, they were appointed. Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up cacancies 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 457 , 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 selements directly or indirectly and his claim is liable to bejected. 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 4. As against this, the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim , Statement . The settlement drawn under provisions of Sections 18(1 ) and 18(3) of I.D. Act in lieu of provisions of law, retrenchment and implementedby Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements.were prevailing from the year 1970 onwards. Such of those employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 7990

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[PART 11-SEC. 3 ( ii) ]

Point No. 1 :

settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment 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 byEmploymentExchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent /Bank terminated several temporary employees in the year 1985, the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (Civil ) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

5. In the additional claim statement , the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination , the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus, the Respondent /Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category, the Respondent /Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Herice, 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 ünder 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. 455 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? "

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 7991

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[भाग II- खण्ड 3 (ii) ]

there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex . M10 comprises of both messengerial and non -messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore, both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore, it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait list is not inconformity with the instructions of Ex.M2 and non - preparation of separate panels amounts to violation of circular . Secondly, it has not beenprepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994 . Furthermore , no wait list was released/published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bankto release the list of successful candidates pursuant to the first advertisement published in ' The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex.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 . 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 producedthe 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 ahsorption 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.

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V -A of the I.D. Act providing for retrenchment is not enacted only for the benefit of the workmento whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2, W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/ Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . Ml and the averments of MWI and MW2 and their testimonies during the cross- examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause I of Ex . M1 deals with categorization ofretrenched temporary employees into ' A, B and C ' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause I is illegal . Clause 1 ( a) of Ex . M1 provides an opportunityto persons who were engaged on casual basis and allowed to work in leave / casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories oftemporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy 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 anydocument in support of the so called non- inclusion except his bald statement. Further , according to MW1 wait list under Ex. M10 was prepared on 2-5-92 but 7992

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[PART II- SEC . 3( ii) ]

case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/ Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther contended on behalf 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 .

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/Ba 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 vacancyanywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent /Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ), Hyderabad, it is neither a 18(3 ) settlement nor 12(3) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex. Ml to M4 made in terms of Ex. M6. Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore, they do not have any bearing in the case of the Petitioner . Further, though the Respondent/Management has examined two witnesses, the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all, though the Respondent/Bank has referred to voluntary retirement scheme. In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised. Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3) of the ID. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 7993

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3(ii) ]

settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being 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 workmanwith wait list Number given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability ofa reference. Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible fromthe material before it , it has only on duty and that is to decidethe 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 was positioned down in the seniority . The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bona fide which were the only workable solution and is binding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the 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 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 union from scuttling the settlement . Itfurther 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 establishment. Even in case of the first category, if the 7994

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7, 1929

[PART 11-SEC. 3 (ii)) 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 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 ofthe Labour Court. " Relying on all these decisions, the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS Vs. K.V. VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose

name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy. In that case , pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number ofbottom personswere removed from the select list and the remaining selectees were given appointments according to their comparative merits. In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that 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 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 sponsoredby 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 7995 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3( ii ) ]

their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of' last come - first go ' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors ." Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent /Bank. Any how, if the Petitioner has shown anything , the Respondent/Bank is readyto establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even 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 notat arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode of public appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the 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 concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad -hoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation isgiven, it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption in the Respondent /Bank. Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs.STATE OF BIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances, their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts,

3855 G1/2007-8 7996

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

[PART II-SEC. 3( ii)]

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/ Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

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

LTD . AND OTHERS VS. SOM VIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further, in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "itis not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon 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 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 isto what relief the Petitioner is entitled ?

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

21. Thus, the reference is answered accordingly .

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, 2006.

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 preparedby the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements, the Petitioners cannot now question either the preparation of wait list or number allotted to them. Under such circumstances , it cannotbe questioned by the Petitioner .

For the Petitioner

WW1 Sri P. Velu WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked : --

Ex. No. Date

Description

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

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/ Bank and Federation , at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the waitlist . Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even corruption or

W2 20-04-88 Хегох copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex .M1 .

7997

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii) ]

Date

Description

Ex. No.

Date

Description

Ex. No.

Feb. 2005

W20

W3 24-04-91

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

13-02-95

W21

W4 01-05-91

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

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

W5

09-11-92

20-08-91

W22

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

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

W6 15-03-97

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

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

09-07-92

W24

W7 25-03-97

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

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

Nil

W8

W25 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 instructions in Reference book on staff about casuals not to be engaged at office /branches to domessengerial work.

W9 04.05.85

W26 31-12-85

Xerox copy of the service certificate issued by Avoor Branch .

16.12.97

W10

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

Xerox copy of the service certificate issued by Avoor Branch.

18.12.97

W11

For the Respondent/ Management :-

Xerox copy of the service certificate issued by Avoor Branch .

Description

Ex. No. Date

W12 Nil

Xerox copy of the settlement .

M1 17-11-87

Xerox copy of the settlement .

M2 16-07-88

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

M3

Xerox copy of the settlement .

27-10-88

W13 Nil

Xerox copy of the settlement.

M4 9-01-91

Xerox copy ofVol. III of Reference book on Staff matters upto 31-12-95.

Xerox copy of the settlement .

M5 30-07-96

06-03-97

W14

M6 09-06-95

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

Xerox copy of the minutes of conciliation proceedings .

06-03-97

W15

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

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

M8 15-05-98

06-03-97

W16

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

M9 10-07-99

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

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

17-03-97

W17

M10 Nil

Xerox copy of the service particulars - J. Velmurugan.

Xerox copy of the wait list of Trichy Module.

26-03-97

W18

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

M11 25-10-99

31-03-97

W19

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

Xerox copy of the appointment order to SriG. Pandi.

7998

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

[PART II-SEC. 3 ( ii) ] नई दिल्ली, 28 अगस्त, 2007

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 itas I.D. No. 98/2004.

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

का.आ. 2793.-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 98/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 28-8-2007 को प्राप्त हुआ था ।

[सं. एल-12012/300/1998- आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 28th August , 2007

"Whether the demand of the workman Shri D. Rajendran , wait list No. 459 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. 2793. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 98/ 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 28-8-2007.

[No. L- 12012/300/ 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. 98/2004

[Principal Labour Court CGID No. 41/99]

[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

SriD. Rajendran

: 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/ sV. Sundar

Anandan , Advocates

AWARD

1. The Central Government, Ministry of Labour , vide OrderNo. L- 12012/300/98 - IR (B -I ) dated 02-02-1999 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. 41/99 and issued

The Petitioner was sponsored by Employment Exchange . for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination. He was appointed on temporary basis at Kattur ADB branch from 1986. During 1985-86, the Petitioner was orally informed that his services were no more required. The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank , in addition to its counter , filed a copy of settlement under Section 18 (1 ) reached between management of State Bank 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 Kattur ADB branch . He was called for an interview by a Committee appointed by Respondent/ Bank in this regard. But , they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 1986 , the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temporary basis in Kattur ADB branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working at Bhavani branch , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97. Hence , the Petitioner raised a dispute with regard to his non - employment . Since the conciliation 7999

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 ,1929

[भाग II- खण्ड 3(ii) ]

ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Government to reconsider the reference and the Petitioner requested the Respondent/Bankto continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent /Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522( 4) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/ Bank has been Regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either 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 praysto grant relief of regular employment in Respondent /Bank with all attendant benefits .

17-11-87,16-07-88, 07-10-88, 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3 ) of I.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 459 in waitlist of Zonal Office , Trichy . So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered. As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extendedup to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problemwas due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates, 212 temporary employees were appointed and since the Petitioner was wait listed at 459 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment ( Conferment of Permanent Statusto Workmen) Act , 1981 does not applyto Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correct to say that documents and identity of Petitioner 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service. Hence , the question of regular appointment /absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 (1 ) and 18(3) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . 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 Federation which resulted in five settlements dated 8000

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

[PART II-SEC . 3 ( ii )]

Point No. 1 :

settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment ofdaily wages/ casual labour . Further , for circle 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 toprotect the legal and constitutional rights of the workmen concemed and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex. M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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 ) ofthe Act and not under Section 18 (3 ) of the Act . As per recruitment rules ofthe Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/ Bank . Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 .It is false to allege that the settlements are contrary to the rights of the Petitioner . Hence , the Petitioner prays that an award may be passed in his favour.

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

(i) "Whether the demand of the Petitioner in Wait List No. 459 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?"

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 1.D.Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated . Learned representative for the Petitioner 8001

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन7, 1929

[ भाग II-खण्ड 3 (ii) ]

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 onc 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 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 after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India . Therefore, the Petitioner contended that preparation of Ex. M 10 namely wait list is not inconformity with the instructions of Ex.M2 and non- preparation ofseparate pancls amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex . W2circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/published evenafter the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/ Bank to release the list ofsuccessful 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 producedthe 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 1.D. Act, 1947.

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V -A of the I.D. Act providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent /Bank issued from timeto time in connection withthe implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of 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 , 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 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 MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except his bald statement. Further , accordingto MWI wait list under Ex . M10 was prepared on 2-5-92 but 8002

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

[PART II-SEC. 3 (ii) ]

case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther contended on behalf 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 anaward in their favour .

Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of 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 failsto accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . TheRespondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees. Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad, it is neither a 18( 3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . M6. Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore, theydo not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses, the 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 made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service. Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 (1 ) and 18(3 ) of the ID. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 8003 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 ( ii) ]

the settlement was reached with a representative union of whichthe 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 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 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 is contendedthat mere wording of reference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even 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 was positioneddown in the seniority. The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were 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 unionwillbe binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law 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 bindsmerely 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

3855 GI /2007-9 8004

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

[PART II-SEC. 3 (ii)] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead. ofrefusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attemptto consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported 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 he 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 .'ancy. " 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 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 onall these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad-hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad-hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post 8005

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii) ]

their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the 1.D.Act retrenchment procedure following principle of ' last come - first go ' is not mandatory butonlydirectory , on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank. Any how, if the Petitioner has shown anything , the Respondent/Bank is readyto establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even 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 Courtto prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment ,do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to cke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed shouldbe directed to be continued permanently. By doing so , it will be creating another mode 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 duc 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 ofthese employees whose entry itself was illegal and void isconcerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the rulings reported in AIR 1997 SCC3657 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, 8006

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7, 1929

[PART II-SEC. 3 (ii)]

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

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

LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "itis not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon 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 isto 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 hy him . No Costs.

21. Thus , the reference is answered accordingly .

(Dicated to the P.A. , transcrihed and typed 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 cannot be questioned by the Petitioner..

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

For the Respondent MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :---

Ex.No. Date Description

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

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 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

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex . M1 .

8007

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन7, 1929

[भाग II-खण्ड 3 ( ii ) ]

Date

Description

Ex. No.

Date

Description

C

Ex . No.

Feb. 2005

W20

W3

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

24-04-91 Xerox copy of the circular of Respondent /Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

13-02-95

W21

W4 01-05-91

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait -list.

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

W5

09-11-92

W22

20-08-91

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

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

W6 15-03-97

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

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

09-07-92

W24

W7 25-03-97

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

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

07-02-06

W25

Nil

W8

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

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

31-12-85

W26

W9 24-06-88 Xerox copy of the service certificate issued by Kattur ADB Branch .

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

03-08-96

W10

Xerox copy of the service certificate issued by Tennur Branch.

For the Respondent /Management : ---

W11 03-06-98 Xerox copy of the service certificate issued by Tennur Branch.

Date

Description

Ex. No.

W12 Nil

Xerox copy of the settlement.

M1 17-11-87

Xerox copy of the settlement .

M2 16-07-88

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

Xerox copy of the settlement .

M3 27-10-88

W13 Nil

Xerox copy of the settlement.

M4 09-01-91

Xerox copy ofVol . III of Reference book onStaaff matters upto 31-12-95.

M5

Xerox copy of the settlement.

30-07-96

06-03-97

W14

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

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

06-03-97

M7 28-05-91

W15

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

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

M8 15-05-98

06-03-97

W16

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

M9 10-07-99

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

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

17-03-97

W17

M10 Nil

Xerox copy of the service particulars - J.Velmurugan.

Xerox copy of the wait list of Trichy Module.

26-03-97

W18

Xerox copy of the letter advising selection ofparttime Menial-G . Pandi . M11 25-10-99

31-03-97

W19

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

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

8008

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

SEC. 3 (ii )]

[PART II- नई दिल्ली, 28 अगस्त , 2007

to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively . After the constitution of this - CGIT - cum-Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I.D. No. 58/2004 .

का.आ. 2794.-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 58/2004 ) 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-12012/261/1998- आईआर( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 28th August , 2007

"Whether the demand of the workman Shri K. Ramanan , wait list No. 388 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. 2794.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 58/ 2004) of the Central Govemment Industrial Tribunal - Cum- Labour Court , Chennai as shown in the Annexure in the Industrial Dispute between the management of State Bank of India and their workmen , received by the Central Government on 28-8-2007 ,

[No. L- 12012/261/ 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. 58/2004

[Principal Labour Court CGID No. 80/99 ]

[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 K. Ramanan

: 1 Party/Petitioner

AND

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

APPEARANCE

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

For the Management : Mr. R. Krishnamachari , Advocate

AWARD

1. The Central Government ] Ministry of Labour, vide Order No. L- 12012/261 /98 - IR (B - 1 ) 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. 80/99 and issued notices

The Petitioner was sponsored by Employment Exchange for the post of sub- staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Kuzhithalai branch from 03-10-1983 . The Petitioner was orally informed that his services were no more required . The non- employment ofthe Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter , filed a copy of settlement 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 Kuzhithalai branch . He was called for an interview by a Committee appointed by Respondent/ Bank in this regard. But , they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 3-10-1983 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Kuzhithalai 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 8009 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3(ii) ]

non -employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to 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 . 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 .

17-11-87,16-07-88,07-10-88, 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3) ofI.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 388 in waitlist ofZonal Office , Madurai . So far 219 wait listed temporary candidates, out of492 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is falseto allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment. Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category; ( B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended 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 employces 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 388 , 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 (1) and 18(3) of 1.D. Act in lieu ofprovisions of law, retrenchment and implementedby Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 8010

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 /ASVINA 7 , 1929

[PART II-SEC. 3 ( ii )]

Point No. 1 :

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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:--

(i) "Whether the demand of the Petitioner in Wait List No. 388 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified?"

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

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 employces 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 hy 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 8011

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3( ii) ]

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 thatthe 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/ Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MWI wait list under Ex. M10 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 sa in the case of casuals . Therefore , both belongs to two different and distinct categories. But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is not inconformity with the instructions of Ex . M2 and non -preparation of separate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/ 91directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in ' The Hindu' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things, it is clear that Ex. M 10 has been prepared in violation of instructions and ceased to have the credihility 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 . M 10 before this Tribunal marking it as a confidential document .It is further contended on hehalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further, even before or after the settlement on absorption of temporary employees, the expression that they were engaged in leave vacancy was used as a device to take them out ofthe principal clause 2 ( oo ) of the I.D. Act , 1947 .

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V-A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom Section 25 F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from timeto time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.M1 and the averments of MW1 and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come-- first go ' or ' first come- last go ' and therefore , the categorization in Clause 1 is illegal. Clause 1 (a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave / casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further, engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy ofwhich is marked as Ex .W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore, these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions in Ex .W2 four types ofwaiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M 10 in this case . Those candidates under Ex. M10 were found suitable for appointment as messengers and sweepers . Even MW 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 bul

3855 GI /2007-10 8012

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 / ASVINA 7 , 1929

[PART II-SEC. 3 ( ii)]

:

case. The Petitioners have completed the service of 240 days and moré in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore, their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf ofthe Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days, since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that "the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc. " It is further, argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal. In all these cases, the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to50 years and for no fault of theirs, they find themselves stranded in life midstream. They have also not gainfully employed. In such circumstances, this Tribunal has to pass anaward in their favour .

Though the Petitioner's work in the Respondent/ Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of SastryAward are also violated. Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employworkmen as ' badlies ', casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense, since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex. M10which has been drawn up is contrary to law and also bad in law . Thus, the Respondent /Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it . Though clause 2( e) of Ex. M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/ Bank has not produced any 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 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

10. But, as against this, the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence, the question of regular appointment/absorption does not arise at all and their engagement was not authorised. Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 (1) and 18(3 ) of the ID. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive. Further, they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 8013 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

[भाग II- खण्ड 3 ( ii) ]

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

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL. KOLLAM wherein the Kerala High Court has held that "mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order ofreference, ifpoints ofdifference are discernible from thematerial before it, it has only on duty and that is todecide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into was positioned down in the seniority . The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/ Bank and the Federation were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected . Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course ofthe conciliation proceedings with a recognised majority unionwillbe binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same . To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance 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 ) . Α 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 8014

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

[PART II-SEC. 3 (ii )] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits . " Further, he argued that the Tribunal 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 entitledto go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139, UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination inthis appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy . In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments accordingto their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion 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 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 onall 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 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 8015

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3(ii) ]

theirdisengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ ( Supp. ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of' last come - first go ' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and, therefore , the claim 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 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 whỏ 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 continuedpermanently. By doing so, it will be creating another mode of public 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 tobe clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules . ' Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of an ad - hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of 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 . " s 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 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 , 8016

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[PART II-SEC. 3(ii)]

other inducements . Under such circumstances . I find the Petitioners cannot now question the settlernents 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 thesedisputes 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 regardto 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 .

LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules, the same being a nullity , the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise. " Further, in CDJ 2006 SC395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "itis not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further , in2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION Vs. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him tobe regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore ."

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 day the 31st January , 2007. )

K. JAYARAMAN, Presiding Officer

Witnesses Examined :--

For the Petitioner

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

WW1 Sri K.Ramanan 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 . MI .

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation, at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the wait list . Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide , misrepresentation , fraud or even corruption or

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex. M1 .

8017

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 ,1929

[भाग II-खण्ड 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 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 .

15-03-97

W6

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

W7 25-03-97 Xerox copy of the circular of Respondent /Bank to all Branches regarding identification of messenger vacancies and filling thembefore 31-3-97.

Nil

W8

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 Petitioner issued by Kuzhithalai Branch.

W10 Nil Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

W11 Nil

Xerox copy of Reference book on Staff matters Vol . III of 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 ZonalOffice for interview of messenger post-K. Subburaj .

06-03-97

W14

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

17-03-97

W15

Xerox copy of the service particulars - J. Velmurugan.

26-03-97

W16

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

31-03-97

W17

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

Date

Description

Ex. No.

Feb. 2005

W18

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

13-02-95

W19

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

09-11-92

W20

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

09-07-92

W21

Xerox copy of the minutes of Bipartite meeting.

W22 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

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

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

For the Respondent/ Management :---

Description

Ex. No. Date

Xerox copy of the settlement .

17-11-87 M1

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

Xeгox copy of the settlement .

27-10-88 M3

Xerox copy of the settlement. 9-01-91 M4

Xerox copy of the settlement .

M5 30-07-96

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

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

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

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

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

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

8018

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINΑ 7 , 1929

[ PART II-SEC . 3 (ii ) ] नई दिल्ली, 28 अगस्त, 2007

to both parties. Both sides entered appearance and filed their claim statement and counter statement respectively. After the constitution of this-CGIT-cum-Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I.D. No. 57/2004.

का.आ. 2795. 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 57/2004 ) 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-12012/262/1998- आईआर (बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the28th August, 2007

"Whether the demand of the workman Sri P.Ganesan , wait list No. 324 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. 2795.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No.57/2004 ) ofthe Central Government Industrial Tribunal - Cum-Labour Court , Chennai as shown in the Annexure in the Industrial Dispute between the management of State Bank of India and their workmen , receivedby the Central Government on 28-8-2007 ,

[No. L - 12012/262/ 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. 57/2004 [Principal Labour Court CGID No. 79/99 ]

[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

Sri P.Ganesan

: I Party/Petitioner

AND

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

APPEARANCE

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

For the Management : Mr. R.Krishnamachari , Advocates

AWARD

1. The Central Government , Ministry of Labour, vide Order No. L- 12012/262/ 98 - IR ( B -I ) dated 05-02-1999 has referred thisdispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 79/99 and issued notices

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Rameshwaram branch from 12-09-1984. The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter , filed a copy of settlement under Section 18( 1) reached between management of State Bank of India and All India State Bank of India Staff Federation 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 Rameshwaram 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 . From12-09-1984 the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temprorary basis in Rameshwaram 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 , 8019 भारत का राजपत्र सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii) ]

the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to 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 .

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.324 in waitlist of Zonal Office , Madurai . So far 219 wait listed temporary candidates , out of 492 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement, employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 492 wait listed candidates , 219 temporary employees were appointed and since the Petitioner was wait listed at 324 , 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 settlementsdirectly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Statusto Workmen) Act, 1981 does not 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 werc filled up against 4. As against this, the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 (1 ) and 18 (3 ) of 1. D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 16-07-88, 07-10-88,9-1-91 and 30-7-96. The said

3855 GI /2007-11 8020

[PART II-SEC . 3( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

Point No. 1 :

the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages /casual 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 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 conneeted 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 Petitionbefore the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex. M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent /Bank without any intimation or notice denied an opportunityto work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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 whinıs and fancies . Hence , the Petitioner prays that an awa . d 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 : ----

(i) "Whether the demand of the Petitioner in Wait List No. 324 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thcreupon as temporary messenger is justified?"

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

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 guidelincs carry the procedure for regularisation of service of the temporary cmployees and any settlement in this regard is redundant and in any case, the Petitioner is not bound by settlement under Section 18( 1) entered inta 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 8021 भारत का राजपत्र सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii ) ]

there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . it is further contended on behalf of the Petitioner that as 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 normsto 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 notinconformity with the instructions of Ex.M2 and non- preparation of separate panels amounts to violation of circular . Secondly, it has not beenprepared asper instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released/published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bankto release the list of successful candidates pursuant to the first advertisement published in ' The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by themto 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 heldduring the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking itas a confidential document. It is further contended on behalf of the Petitioner that though the Respondent /Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo ) of the 1.D. Act , 1947 .

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 258 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 untersable. It is further contended that onbehalf of the Petitioner that Ex. W2 , W3 and WE as well as Ex . M8 which constitute /rclate to the circular instructions of the Respondent/Bank issued from timeto time in connection with the implementation of the settlements on absorption and which are statutory in character. Fanher, combined study of Ex. Ml and the averments of MW1aad MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw dead to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex. Ml deals with categorization ofretrenched temporary employees into "A, B and C" , but this categorization of ' A , B & 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 cligible 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 cligible categories is not valid . Therefore, these persons who were engaged by the Respondent /Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions inEx .W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. MI , M3 and M4 respectively. But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement. Further, accordingto MW1 wait list under Ex . M10 was prepared on 2-5-92 but 8022

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 1929

[PART II-SEC . 3 (ii) ]

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore, their retrenchment'from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther contended on behalf 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 .

Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative ofthe Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employ workmen as 'badlies ' , casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned représentative 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 . MI to M4 made in terms of Ex. M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year1999 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 bas referred io voluntary retirement scheme , in the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view 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/ absorptiondoes 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 the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 8023 भारत का राजपत्र सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 ( ii) ]

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 cannotbe 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 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 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 oftenability of a reference . Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from thematerial before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look was positioneddown in the seniority. The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further, the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were 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 of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement . It further held that "there may be exceptional cases, where there may be allegations ofmala fides, fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 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 arrivedat 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 8024

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 /ASVINA 7 , 1929

[PART II-SEC . 3 ( ii) ] 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 pedantie 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 clcar 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, 1 find that the settlement was validly entered into between the Respondent /Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank , 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 heen 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 inGovt. 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 cornsequently , 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 notto confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanen ! 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 vacaney exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad - hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post 8025

सितम्बर 29 , 2007/आश्विन 7 , 1929

भारत का राजपत्र

[भाग II- खण्ड 3 (ii) ]

their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come - first go ' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent /Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with costs .

at the time of his appointment ; (d ) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad - hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but 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 employces 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 - hocbasis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees, therefore, remained a nullity." Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employces working on daily wages . Under these circumstances , their disengagement vice cannot

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 employce 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 ct in a position to bargain-not at arms length since he might have been searching for some employment so asto 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 actbe entitled to be absorbed in regular service ormade pernicient merely on the strength of such continuance . if the original appointment was not made by following a due proces of selection as envisaged by relevant roles. "

Purther . LCDUALA SC 443 NATIONAL FERTILIZERS be construed to be a retrenchment under the D. Act. Tho concept of romuchment werefore , onutuolta stretched to march an ement to over de Show ay ue only doily wrde cuployees and Marsdeuto the posts, 8026

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7,1929

[PART II- SEC. 3 ( ii) ]

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlementsat this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services 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 , inCDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR , the Supreme Court has held that "it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that" only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

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

(Dicated 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 thepreparation of wait list or number allotted to them . Under such circumstances , it cannotbe questioned by the Petitioner .

Witnesses Examined :-

For the Petitioner WW1 Sri P.Ganesan WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri -M.Perumal

Documents Marked :-

Description Ex. No. Date

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

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard 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 8027

सितम्बर 29 , 2007/आश्विन 7 , 1929

भारत का राजपत्र

=== [भाग II-खण्ड 3 (ii) ]

Date

Ex . No.

Description

Date

Ex. No.

Description

31-03-97

W18

W2 20-04-88

Xerox copy of the appointment order to SriG. Pandi .

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

Feb. 2005

W19

W3 24-04-91

Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait listNo. 395 ofMadurai Circle .

13-02-95

W20

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

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

W4 01-05-91 Хегоx copy of the advertisement in The Hindu on daily wages based on Ex. W4 .

09-11-92

W21

W5

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

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

09-07-92

W22

W6

Xerox copy of the minutes of Bipartite meeting.

15-03-97

09-07-92

W23

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

W7 25-03-97

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

07-02-06

W24

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

Nil

W8

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

Xerox copy of the service certificate issued by Rameswaram Branch .

25-07-94

W10

For the Respondent/Management : --

Xerox copy of the service certificate issued by Rameswaram Branch.

Description

Ex. No. Date

W11 Nil

M1

Xerox copy of the settlement .

17-11-87

M2

Хегоx copy of the settlement .

16-07-88

M3

Хегоx copy of the settlement .

27-10-88

Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent /bank regarding recruitment to subordinate carde & service conditions .

M4

Xerox copy of the settlement .

9-01-91

W12 Nil

M5

Xerox copy of the settlement .

30-07-96

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

M6 09-06-95

W13 06-03-97

Xerox copy of the minutes of conciliation proceedings .

M7 28-05-91

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

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

06-03-97

W14

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

Xerox copy of the call letter from Madurai zonaloffice For interview ofmessenger post-K. Subburaj .

M9 10-07-99

06-03-97

W15

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

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

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

17-03-97

W16

Xerox copy of the service particulars ---- J. Velmurugan .

25-10-99

M11

26-03-97

W17

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

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

3855 GI /2007-12 8028

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929 [PART II- SEC . 3 (ii) ] नई दिल्ली, 28 अगस्त, 2007

thedispute on its file as CGID No. 78/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statcment 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. 56/2004.

का.आ. 2796. 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 56/2004 ) 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-12012/272/1998- आईआर (बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 28th August , 2007

"Whether the demand of the workman Sri S. Antonisror , wait list No. 396 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. 2796. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No.56/2004 ) 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 28-8-2007.

[No. L - 12012/272/ 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. 56/2004 [Principal Labour Court CGID No. 78/99]

[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 S.Antoniraj

: I Party/Petitioner

AND

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

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram , Authorised Representative .

For the Management : Mr. R. Krishnamachari ,

Advocate

AWARD

1. The Central Government, Ministry of Labour , vide Order No. L- 12012/272/98 - IR ( B - I ) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Tiruchendur 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 additionto its counter , filed a copy of settlement under Section 18 (1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the 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 orally to join at the branch where he initially worked as a class IV employee. From 30-08-82 the Petitioner has been working as a temporary messenger and some times performing work in other branches also. While working on temprorary 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 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 8029 भारत का राजपत्र सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii) ]

non -employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to 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 mentionedby 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 categorics 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 .

17-11-87, 16-07-88,07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) ofI.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarty placed other temporary employees and the Petitioner was wait listed as candidate No.396 in waitlist of Zonal Office , Madurai . So far 219 wait listed temporary candidates, out of 492 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having 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 teinporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement, employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; ( B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up wacancies 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 permanentmanent 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 396 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Peitioner . The Petitioner is estopped from questioning the seatlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questionca by any union so far and the settlements of bank level settlements and operated. throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Statusto Workmen) Act, 1981 does not 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise. The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18( 1 ) and 18(3 ) of I.D. Act in lieu of provisions of law, retrenchment and implementedby Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 8030

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PointNo. 1 :

settlements, vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment of daily wages/casual labour . Further , for circle 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 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 concemedandwhile 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 theAct and not under Section 18(3) of the Act. As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the 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. 396for 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?"

9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees in the Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18(1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars /guidelines issued by the Respondent/Bank to the effect that temporary employees atbranches /offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V -A ofthe I.D. Act and it is preposterous to contend that the Petitioner 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 8031 भारत का राजपत्र सितम्बर 29 , 2007/आश्विन 7, 1929

[ भाग II- खण्ड 3 ( ii ) ]

there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex. M10 comparises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is not inconformity with the instructions of Ex .M2 and non -preparation 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 pursuantto 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 , evenbefore or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out ofthe principal clause 2 (oo) of the I.D. Act , 1947 .

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that 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 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 beeninformed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex. W2 four types of waiting lists have to be prepared. But the Respondent/Bank has allegedto have prepared only one wait list for each module as per Ex.M 10 in this case. Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers. Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex. M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex.M1 , M3 and M4 respectively . But , 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 8032

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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 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 .

Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC201 H. D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employworkmen as 'badlies ', casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex.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 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 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 andit constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

10. But , as against this , the learned senior counsel for the Respondent/ Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connecteddisputes were not in continuous service . Hence , the question of regular appointment/absorptiondoes not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Section 18(1 ) and 18(3 ) of the I. D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 8033 भारत का राजपत्र सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग 11 -खण्ड 3 ( ii ) ]

settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by the free will of the parties and is a pointer to there being 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 itis alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

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

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 IC345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that "mere wording ofreference is not decisive in the matter of tenability ofa 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 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 therulings 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, 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 allworkmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. " It further held that " there may be exceptional cases, where there may be allegations ofmala fides, fraud or even corruption or other inducements. But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Leamed counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 К. С. 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 ofthefirst 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 8034

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929 [PART II-SEC. 3 (ii )] 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 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 în view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framedto the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not ? But, I find that the settlement was validly entered into between the Respondent /Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS Vs. K.V. VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that itwas a yearly panel expiring on 6-2-98, we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry ofthe panel. The claim of the Respondents as contained in the W. P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that" candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him. Further, he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy . The direction in effect means that every ad - hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post 8035

सितम्बर 29, 2007/आश्विन 7 , 1929

भारत का राजपत्र

[भाग II- खण्ड 3 ( ii) ]

their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp .) 754 wherein the Rajasthan High Court has held that "Under Section 25G of the I.D. Act retrenchment procedure following principle of ' last come - first go ' is not mandatory but only directory , on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how , if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent /Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even 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 ocess 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 temporarytempe 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 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 at the time of his appointment ; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover, from the mere continuation of an ad - hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of Lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation ofthese employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility . It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees, therefore, remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed 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 ,

3855 GI /2007-13 8036

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929 [PART II SEC . 3 ( ii) ]

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

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

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 and16 ofthe Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that "only because an employee had worked for more than 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 . "

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 reliefthe 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 .

(Dicated 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 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 S.Anthony Raj WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri M.Perumal

Documents Marked :-

Ex.No. Date

Description

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

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

8037 भारत का राजपत्र सितम्बर 29 , 2007/ आश्विन 7. , 1929

[भाग II- खण्ड 3 (ii) ]

Description

Date

Ex. No.

Date

Ex . No.

Description

W2 20-04-88

W18 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

Хегox copy of the administrative guidelines issuedby Respondent/Bank for implementation ofEx.M1 .

13-02-95

W19

W3 24-04-91

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel ofwait list .

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

W2009-11-92

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

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

W5 20-08-91

09-07-92

W21

Xerox copy of the minutes of Bipartite meeting .

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

W6

09-07-92

15-03-97

W22

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

W7 25-03-97

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

07-02-06

W23

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

31-12-85

W24

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

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

W9 Nil

For the Respondent/ Management :-

Xerox copy of the service certificate issued by Tiruchendur Branch

Description

Ex . No. Date

W10 Nil

M1

Xerox copy of the settlement .

17-11-87

M2

Xerox copy of the settlement .

16-07-88

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

M3

Xerox copy of the settlement .

27-10-88

W11 Nil

M4

Xerox copy of the settlement .

9-01-91

Xerox copy of reference book on Staff matters upto Vol . III 31-12-95.

M5

Xerox copy of the settlement .

30-07-96

06-03-97

W12

M6 09-06-95

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

Xerox copy of the minutes of conciliation proceedings .

06-03-97

W13

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

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

M8 15-05-98

06-03-97

W14

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

M9 10-07-99

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

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

17-03-97

W15

M10 Nil

Xerox copy of the service particulars J. Velmurugan .

Xerox copy of the wait list of Madurai Module .

W16 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi.

25-10-99

M11

W17 31-03-97

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

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

8038

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC. 3 (ii) ] नई दिल्ली, 28 अगस्त, 2007

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 itas I.D. No. 88/2004 .

का.आ. 2797.-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 88/2004 ) 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-12012/60/1999 -आईआर( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 28th August, 2007

"Whether the demand of the workman Shri B. Manimuthu, wait list No. 386 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled?"

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

S.O. 2797. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No. 88/ 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 28-8-2007 .

[No. L- 12012/60/1999 -IR(B- I)] AJAY KUMAR , Desk Officer

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

Wednesday, the 31st January, 2007

PRESENT

Shri K. Jayaraman , Presiding Officer Industrial Dispute No. 88/2004

[Principal Labour Court CGID No. 263/99]

[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

SriB.Manimuthu

: I Party/Petitioner

AND

TheAssistant General Manager, II PartyManagement StateBank of India , Z. O. Madurai .

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised

Representative.

For the Management

:M/sK. Veeramani ,

Advocates.

AWARD

1. The Central Government, Ministry of Labour, vide OrderNo. L-12012/60/99 - IR (B- I) dated 10-05-1999 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. 263/99 and issued

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 Srivilliputhur branch from 02-01-1983.The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter, filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . ThePetitioner also submitted his application in the prescribed format through Branch Manager of the Srivilliputhur 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 . From 02-01- 83, the Petitioner has been working as a temporary messenger and some time performing work in other branches also. While working on temporary basis in Sattur branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working atas much,, 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, 8039 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3 (ii ) ]

the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party tothe settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522(4) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent /Bank has been Regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular. The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Government for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise. The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement. The settlementdrawn under provisions of Sections 18 ( 1 ) and 18 (3) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated

17-11-87, 16-07-88,07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3) of 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. 386 in waitlist ofZonal Office, Coimbatore . So far 219 wait listed temporary candidates , out of 492 wait listed temporary employees were permanently appointedby Respondent /Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referredto above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; ( B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar ycar after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered. As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaidtemporary 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 386 , he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlementsdirectly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment ( Conferment of Permanent Statusto Workmen) Act , 1981 does not applyto Respondent /Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correct to say that documents and identity of Petitioner 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 8040

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ ASVINA 7 , 1929

[PART II-SEC. 3( ii )]

Point No. 1 :

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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

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

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

(i) "Whether the demand of the Petitioner in Wait List No. 386for 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 ? "

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 timeto 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 1.D.Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner 8041 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii) ]

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 of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals. It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex .M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories. But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex . 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. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in ' The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex. M 10 has been prepared in violation of instructions and ceased to have -the credibility attached to the wait list. Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent /Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in , leave vacancy was used as a device to take them out of the principal clause 2 (00) of the I.D. Act , 1947.

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that on behalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex. M8 which constitute /relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.M1 and the averments of MW1 and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come- last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex. W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex. W2 four types ofwaiting lists have to be prepared. But the Respondent/ Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively . But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MW1 wait list under Ex.M10 was prepared on 2-5-92 but 8042

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

[PART II-SEC . 3 ( ii )]

:

case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent /Bank and they are entitled to the benefits under the provisions of I.D. Act . It 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 .

Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that " to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges ofpermanent workmen is illegal . " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2(e) ofEx. M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent /Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bankhas produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ), Hyderabad, it is neither a 18(3) settlement nor 12(3) settlement as claimed by the Respondent/Bank which says onlywith regard to modification of Ex . M1 to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , 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

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 connecteddisputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3) of the 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 engagement and could not be absorbed as he 8043 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3 (ii) ]

with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject- matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation inwhich the Petitioner is also one among them , they have entered into settlement with the bank and therefore, it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connecteddisputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt. is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the material before it , it has only on duty and that is to decide the points on merits and notto 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 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 bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further, he relied on therulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that" in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 (1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it willbe binding on all workmen of the establishment . Even in case of the first category, if the settlement was reached

3855 GI/2007-14 8044

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

[PART II SEC. 3( ii) ] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits . " Further , he argued that the Tribunal 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 ofreference in a fair and reasonable manner ." He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that "the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference, it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner. Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K. V. VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose

name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy. " In that case, pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number of bottom personswere removed from the select list and the remaining selectees were given appointments accordingto their comparative merits. In which , the Supreme Court has held that" in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6SCC584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion oftheir names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was' thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him. Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS. Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now comingto the direction that all those ad - hoc temporary employces 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 8045

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

[भाग II- खण्ड 3 (ii) ]

their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp . ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come first go ' is not mandatory but only directory, on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors ." Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank. Any how , if the Petitioner has shown anything, the Respondent/Bank is readyto establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent /Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even 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-r 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 appointec ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further, in CDJ 2006 SC 443 NATIONAL FERTILIZERS at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders. Moreover, from the mere continuation of an ad-hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of 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. Frorn 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 stretchedto such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , 8046

THE GAZETTE OF INDIA: SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC. 3 (ii ) ]

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law . " Further, in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION Vs. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore . "

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

Point No. 2:

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

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

21. Thus, the reference is answered accordingly. K. JAYARAMAN , Presiding Officer

Witnesses Examined:-

For the Petitioner WW1 Sri B. Manimuthu 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 ofwait 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 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 .

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 corrupaon or

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 .

8047

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii) ]

Date

Description

Ex.No.

Description

Ex. No. Date

31-03-97

W20

W3 24-04-91

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

Feb. 2005

W21

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 Circle .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4.

13-02-95

W22

W5 20-08-91

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

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

09-11-92

W23

W6 15-03-97

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

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

W24 09-07-92

W7

Xerox copy of the minutes of Bipartite meeting.

25-03-97

09-07-92

W25

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 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

W26

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

W9 06-06-88

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

Xerox copy of the service certificate issued by Sattur Branch .

31-12-85

W27

13-08-88

W10

Xerox copy of the service certificate issued by Srivilliputhur Branch.

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

26-02-91

W11

Xerox copy of the service certificate issued by Kariapatti Branch.

For the Respondent/Management : ---

07-01-98

W12

Date

Description

Ex. No.

Xerox copy of the service certificate issued by Sattur Branch.

Xerox copy of the settlement.

M1 17-11-87

W13 Nil

Xerox copy of the settlement.

M2 16-07-88

Xerox copy of the settlement .

M3 27-10-88

Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondent/bank regarding recruitment to subordinate cadre& service conditions .

M4

Xerox copy of the settlement .

09-01-91

W14 Nil

Xerox copy of the settlement .

M5 30-07-96

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

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

06-03-97

W15

M7 28-05-91

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

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

06-03-97

W16

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

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

M9 10-07-99

06-03-97

W17

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

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

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

17-03-97

W18

Xerox copy of the service particulars - J. Velmurugan.

M11 25-10-99

26-03-97

W19

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

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

8048

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 /ASVINA 7 , 1929

[PART 11-SEC . 3 (ii)] नई दिल्ली , 27 अगस्त, 2007

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. 117/2004 .

का.आ. 2798.-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 117/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/401/1998- आईआर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi, the 27th August , 2007

"Whether the demand of the workman Shri K. S. Periassamy , wait list No. 348 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. 2798.- In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 117/ 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 27-8-2007 .

[No. L- 12012/401 / 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. 117/2004

[Principal Labour Court CGID No. 107/99 ]

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

BETWEEN

Sri K. S. Periasamy

: I Party/Petitioner

AND

The Assistant General Manager , II PartyManagement State Bank of India, Region - I Trichirapalli.

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised

Representative .

For the management

: M/ sK. S. Sundar , Advocate

AWARD

The Central Government , Ministry of Labour , vide OrderNo. L- 12012/401/ 98 - IR (B - I) dated 08-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 107/99 and issued

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 branchfrom 23-01-1987 . The Petitioner was orally informed that his services were no more required . The non-employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition 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 throughBranch 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 23-01-87, the Petitioner has been working as a temporary messenger and some times performing work in other branches also. While working on temporary basis in Trichy Z. O. branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of thebranch 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 8049 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7,1929

[भाग II-खण्ड 3 (ii) ]

conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence, since according to the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number of days worked by him after interviewdo not merit consideration . The Petitioner was not a party to the settlement mentioned by the respondent/Bank before the conciliation officer . Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G & 25H of the 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 .

17-11-87, 16-07-88,07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) of I.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 348 in waitlist ofZonal Office , Trichy . So far 212 wait listed temporary candidates, out of 652 waitlisted temporary employees were permanently appointedby Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot turn around and claim appo ment . 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 months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut offdate was extended up to 31-3-97 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 348, he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Statusto Workmen) Act, 1981 does not 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 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/ 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 8050

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 1929

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 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. 348 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?"

[ PART II-SEC. 3 ( ii)] Point No. 1 :

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines /circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 ( Civil ) of 1987, the Respondent/ Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

:

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 8051 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन7, 1929

[ भाग 11- खण्ड 3 (ii) ]

Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 inW.P.No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement wasconcerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category whowere paid wages daily on mutual agreement basis .. In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals. It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex.M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative 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 fortheperiod 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 atChennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was 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. contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore, the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex. W2 , W3 and W8 as well as Ex . M8 which constitute/ relate to the circular instructions of the Respondent/Bank issued from timeto time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . M1 and the averments of MW1 and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come-first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a ) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave / casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption 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 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 alongwith the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex .W2 four types of waiting lists have to be prepared. But the Respondent/Bank has alleged to have preparedonly one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . 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

3855 G1/2007-15

1 8052

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[PART II SEC. 3 ( ii ) ]

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds. have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent /Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal : In all these cases , the Petitioners were in employment as sub- staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to50 years and for no fault of theirs , they find themselves stranded in life midstream. They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour .

Act, 1947. Though the Petitioner's work in the Respondent/ Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence, the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employworkmen as 'badlies ' , casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2(e) of Ex. M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bankhas produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ), Hyderabad , it is neither a 18 (3 ) settlement nor 12(3) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex. M1 to M4 made in terms of Ex . M6 . Though the Respondent /Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses, the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex. M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent /Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

10. But, as against this , the learned senior counsel for the Respondent /Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18( 1 ) and 18(3) of the ID . Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 8053 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3 ( ii ) ]

the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also." He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter of yet another industrial dispute which an appropriate 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 workmanwith wait list Number given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? The Petitioner contended that the retrenchment made by the Respondent /Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Government . is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim. Statement .

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 IC345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even 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 was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on the rulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. " It further held that "there may be exceptional cases , where there may be allegations ofmala fides, fraud or even corruption or other inducements. But, in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 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 ) . Α 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 ofthe establishment . Even in case of the first category, if 8054

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[PART II -SEC . 3 (ii)] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature 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 SAG NATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but that does not meanthat it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order ofreference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. 1 find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it isnot questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

:

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS Vs. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose

name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory . " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that itwas a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry ofthe panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that" candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad - hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy ; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post 8055 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7, 1929

[भाग II- खण्ड 3 (ii) ]

their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp. ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following first go ' is not mandatory. principle of ' last come but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how , if the Petitioner has shown anything , the Respondent /Bank is readyto establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent /Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even 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 opento the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right. " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment. He accepts the employment with open eyes . It may be true that he is not in a 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 a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS at the time of his appointment ; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad -hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of 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 regularisaticularisation of appointment in excess of sanctioned posts . "So far as the question of confirmation ofthese employees whose entry itself was illegal and void isconcerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amountto decorating a still born baby . Under these circumstances, there was no occasion to regularise them or to give them valid confirmation. The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to 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 such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , 8056

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 1929

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

Point No. 2:

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

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

21. Thus , the reference is answered accordingly . 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 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 allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

WW1 Sri K. S. Periyasamy 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 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

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.

8057 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii) ]

Date

Description

Ex. No.

Date

Description

Ex. No.

W23 06-03-97

W3 24-04-91

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

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

W24 17-03-97 Xerox copy of the service particulars J. Velmurugan .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4. W25 26-03-97 Xerox copy of the letter advising selection ofpart time Menial--G . Pandi .

W5 20-08-91

W26 31-03-97 Xerox copy of the appointment orderto Sri G. Pandi .

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

W6

W27 Feb. 2005

15-03-97

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

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

W7

W28 13-02-95

25-03-97

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 identifica- tion of messenger vacancies and filling them before 31-3-97.

W29 09-11-92

Nil

W8

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

09-07-92

W30

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 minutes of Bipartite meeting.

W9 08-02-92

09-07-92

W31

Xerox copy of the service certificate issued by H. E. Kailasapuram Branch.

08-07-93

W10

Xerox Xerox copy of the increment letter given by Respondent/Bank

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 .

01-09-93

W11

Xerox copy of the service certificate issued by Tiruchirapalli Branch.

07-02-06

W32

12-10-94

W12

Xerox copy of the service certificate issued by Musiri Branch.

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

04-05-95

W13

W33 31-12-85

Xerox copy of the service certificate issued by Ramalinga Nagar Branch .

21-08-95

W14

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

Xerox copy of the service certificate issued by Tiruchirapalli Branch.

For the Respondent/Management : -

21-09-96

W15

Description

Ex . No. Date

Xerox copy of the service certificate issued by Tiruchirapalli Branch .

M1

Xerox copy of the settlement .

17-11-87

12-09-96

W16

M2

Хегоx copy of the settlement .

Xerox copy of the service certificate issued by Tiruchirapalli Branch .

16-07-88

M3

Xerox copy of the settlement .

27-10-88

19-11-97

W17

Xerox copy of the service certificate issued by Ramalinga Nagar Branch .

M4

Xerox copy of the settlement .

09-01-91

04-12-97

W18

Xerox copy of the settlement .

M5 30-07-96

Xerox copy of the service certificate issued by Woraiyur Branch.

M6 09-06-95

W19 Nil

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 administrative guidelines in reference book on staff matters issued by Respondent /bank regarding recruitment to subordinate cadre & service conditions .

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

W20 Nil

M9 10-07-99

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

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

06-03-97

W21

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

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

25-10-99

M11

06-03-97

W22

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 .

8058

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC . 3 (ii ) ] नई दिल्ली , 27 अगस्त, 2007

to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively . After the constitution of this- CGIT- cum- Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I.D. No. 115/2004.

का.आ. 2799.--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 115/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/394/ 1998 - आईआर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Shri V. Sankar , wait list No. 225 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. 2799. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 115/ 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 27-8-2007 .

[No. L- 12012/ 394/ 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. 115/2004

[Principal Labour Court CGID No. 105/99]

[ 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

SriV. Sankar

: IParty/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative .

For the Management : Mr. M/ s . V. Sundar Anandan

Advocate

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/ 394/98 - IR ( B - I ) dated 08-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 105/99 and issued notices

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Avoor branch from March 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 Avoor 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 March 1984, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Avoor 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 , 8059 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii) ]

the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party tothe settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary 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 himtowork under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

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. 225 in waitlist ofZonal Office , Trichy . So far 212 wait listed temporary candidates , outof 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 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 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut offdate was extended up to 31-3-97 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 225 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected. Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen) Act, 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correctto say that documents and identity of Petitioner was verified before the Petitioner was engaged . It isalso not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise. The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Sections 18 ( 1 ) and 18(3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioneddown in seniority. 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 whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87, 16-07-88 , 07-10-88,9-1-91 and 30-7-96 . The said

3855 GI /2007-16 8060

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 1929

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 :-

(i) "Whether the demand of the Petitioner in Wait List No. 225 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 ? "

[PART II-SEC. 3 ( ii) ] Point No. 1 :

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of the workmen concerned 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 .

:

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 8061 भारत का राजपत्र: सितम्बर 29 , 2007/आश्विन7, 1929

[भाग II- खण्ड 3 (ii) ]

Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement wasconcerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are notjustified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex.M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were. 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 inEx.W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced thi : 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. 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 . 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 . EvenMW 1 is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.M1 , M3 and M4 respectively . But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non - inclusion except his bald statement. Further , according to MWI wait list under 8062

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC . 3 ( ii) ]

case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service 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 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 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 of40 to 50 years and for no fault oftheirs , they find themselves stranded in life midstream . They have also not gainfully employed . In such circumstances, this Tribunal has to pass an award in their favour.

Act, 1947. Though the Petitioner's work in the Respondent/ Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of SastryAward are also violated . Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore, the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2 ( e) of Ex. M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW 1. Therefore , the termination ofthe Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees. Though the Respondent/Bank has produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18 ( 3 ) settlement nor 12(3) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . M1 to M4 made in terms of Ex . M6. Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , 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

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 8063

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[ भाग II- खण्ड 3 (ii ) ]

with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject- matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable ." Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? " The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated inservice with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

12. But , as against this on behalf of the Petitioner it iscontended that 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, 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 was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected . Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further , he relied on therulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even 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 8064

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

[PART II-SEC. 3 ( ii) ] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAGNATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference, it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank , I find the Petitioner is not entitled to question the settlement.

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy . In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6SCC584 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 whereinthe Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS whereinthe Supreme Court has held that " now coming to the direction that all those ad- hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad-hoc/ temporary employee who has been continued for one year should be regularised even though ( a ) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; ( c) he was not eligible and qualified for the post 8065

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[ भाग II- खण्ड 3 (ii) ]

their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ ( Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of ' last come first go ' is not mandatory but only directory , on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank. Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore, the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even 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 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 ofthese employees whose entry itself was illegal and void isconcerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non-existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity." Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretchedto such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , 8066

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[PART II-SEC . 3 ( ii) ]

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

LTD. AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , isnot a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , inCDJ 2006 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 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 Courtprobably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner .

PointNo. 2 :

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

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

21. Thus, the reference is answered accordingly . K. JAYARAMAN , Presiding Officer

Witnesses Examined:-

For the Petitioner WW1 Sri V. Sankar 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 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 such circumstances , it cannot be questioned by the Petitioner .

For the Respondent MW1 Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :-

Ex .No. Date

Description

W1 01-08-88 Хегох 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 ofmala fide, misrepresentation , fraud or even corruption or

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx . M1 .

8067 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 ( ii) ]

Date

Ex. No.

Description

Date

Ex.No.

Description

31-03-97

W20

W3 24-04-91

Xerox copy of the appointment order to SriG. Pandit.

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

W21 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month ofFebruary , 2005 wait list No. 395 ofMadurai Circle .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

13-02-95

W22

W5 20-08-91

Xerox copy of the Madurai Modul Circular letter about Engaging temporary employees from the panel ofwait list .

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

09-11-92

W23

W6 15-03-97

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

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

31-12-85

W24

Xerox copy of the minutes of the Bipartite meeting.

W7 25-03-97

09-07-92

W25

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

Nil

W8

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

07-02-06

W26

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

W9

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

1984-85 Xerox copy of the service certificate issued by Arasarkulam branch .

31-12-85

W27

04-07-95

W10

Xerox copy of the service certificate issued by Pudukottai branch .

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

W11 07-10-96 Xerox copy of service certificate issued by Avoor branch.

For the Respondent/Management : --

15-11-96

Ex. No. Date

W12

Description

Xerox copy of service certificate issued by Tennur branch .

M1

Xerox copy of the settlement .

17-11-87

W13 Nil

M2

Хегоx 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

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

M5

Xerox copy of the settlement .

30-07-96

W14 Nil Xerox copy of the Vol . III of Reference book on Staffupto 31-12-95.

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

06-03-97

W15

M7 28-05-91

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

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

06-03-97

W16

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

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

M9 10-07-99

06-03-97

W17

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

M10 Nil

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

Xerox copy of the wait list of Trichy Module.

:

17-03-97

W18

Xerox copy ofthe service particulars- J. Velmurugan .

25-10-99

M11

26-03-97

W19

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

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

3855 GI/2007-17 8068

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929

नई दिल्ली, 27 अगस्त, 2007

का.आ. 2800.-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 114/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था । [सं. एल-12012/398/1998 - आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 27th August, 2007

S.O. 2800. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No.114/ 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 27-8-2007 .

[No. L- 12012/398 /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. 114/2004 [Principal Labour Court CGID No 104/99] (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.Parthiban

[PART II-SEC. 3 ( ii)] the dispute on its file as CGID No. 104/99 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. 114/2004.

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

"Whether the demand of the workman Sri S.Parthiban , wait list No. 275 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so, to what relief the said workman is entitled ?"

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

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative For the Management : Mr. F.B. Benjamin George,

Advocate

AWARD

1. The Central Government, Ministry of Labour , vide Order No. L- 12012/398 / 98 - IR ( B - I) dated 8-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken

:

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Cuddalore branch from 22-7-1980 . 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 Cuddalore O.T. 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 22-07-1980 the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temprorary basis in Cuddalore 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.

8069 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii ) ]

Hence , the Petitioner raised a dispute with regard to his non-employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522 ( 4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been Regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave,medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular. The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

Federation which resulted in five settlements dated 17-11-87, 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3 ) ofI.D. Act . In terms thereof, the Petitiorner 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. 275 in waitlist of Zonal Office, Trichy . So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence, they were appointed. Under the settlement, employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category; ( B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacaricies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 275 , 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 concet 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 8070

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7, 1929

[PART II-SEC. 3 (ii )]

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

5. In the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998, the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category , thus , the Respondent/Bank imposed total ban for his future employment. Even though there were sufficient number of vacancies in class IV category, the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive. The Respondent/Bank 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 ) ofthe Act and not under Section 18 (3 ) of the Act . As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petitionbefore the High Court in W.P. No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights 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. 275for 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?"

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/Bankfrom 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 8071

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 ( ii) ]

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 withdaily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW 1 wait list under Ex.M10 comparises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation ofEx. M 10 namely wait list is not in conformity with the instructions of Ex.M2 and non- preparation ofseparate panels amounts to violation of circular . Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994 . Furthermore, no wait list was released / published even after 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 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.

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex .W2, W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A , B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come - last go ' and therefore , the categorization in Clause I is illegal. Clause 1 ( a ) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex .W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview, and selection. But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex.W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one waitlist for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively . But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MW1 wait list under Ex.M10 was prepared on 2-5-92 but 8072.

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 1929

[PART II-SEC. 3 (ii ) ]

case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service 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 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.

Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employworkmen as 'badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it. Though clause 2(e) ofEx. M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18 (3 ) settlement nor 12( 3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . 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 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 8073 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also." He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them. When there is a dispute that the settlement is not bonafide in nature or that it has been arrived at on account 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 of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again . " It further held that "the Tribunal should look into was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and isbinding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore, the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on therulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD. Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same . To that extent , it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. " It further held that " there may be exceptional cases , where there may be allegations ofmala fides, fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 K.C.P. LTD. Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18( 1 ) of the 1.D. Act and ( ii ) those arrived at in the course of conciliation proceedings under section 18(3 ). A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it will be binding on all workmen of the establishment . Even in case of the first category, if the 8074

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[PART II SEC. 3 ( ii) ]

:

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 VANSAGNATHAN ORIENTPAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 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 inentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS Vs. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose

name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that itwas a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry ofthe panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that"candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad- hoc temporary employees who have continued for more than a year, should be regularised , we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad -hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post 8075 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II-खण्ड 3 (ii) ]

their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come first go' is not mandatory but only directory , on sufficient grounds shown , the emplayer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how , if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent /Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even inrecent decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA Vs. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on. the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad-hoc employees who by the very nature of their appointment ,do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either teniporary 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 beer. 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 made 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 employce or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad - hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption 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 of these employees whose entry itself was illegal and void is concerned , it isto be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or on ad- hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility . It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OFBIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore, cannotbe stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts,

3855 G1/2007-18 8076

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

LTD. AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION Vs. S.C. PANDEY wherein the Supreme Court has held that "only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore ." 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service. Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the waitlist prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner,

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation , at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the wait list. Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide , misrepresentation , fraud or even corruption or

[PART II--SEC . 3 ( ii )] other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

19. But, I find since the Supreme Court has held that emporary 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.

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. , Iranscribed 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 WW ! Sri S. Nagarajan WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj Documents Marked :-

Ex . No. Date

Description

W1 01-08-88 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.

[ भाग II-खण्ड 3 ( ii) ]

Description

Date

Ex. No.

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 massenger vacancies and filling thein before 31-3-97.

W8 Nil

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

W9 15-06-88 Хегохx copy of the service certificate issued by Cuddalore Branch 25-07-97

W10

Xerox copy of the service certificate issued by Cuddalore Branch W11 Nil

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

W12 Nil Xerox copy of the Vol. III of Reference book on Staff matters upto 31-12-95. 06-03-97

W13

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

06-03-97

W14

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

06-03-97

W15

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

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

W17 26-03-97 Xerox copy of the letter advising selection of part time Menial-G . Pandi .

8077

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

Description

Ex . No. Date

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 of February , 2005 wait list No. 395 of Madurai Circle .

W20 13-02-95 Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list.

W21 09-11-92 Xerox copy of the Head office circular No. 28 regarding Norms for sanction of messenger staff.

W22 09-07-92 Xerox copy of the minutes of Bipartite meeting.

W23 09-07-92 Xerox copy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

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

W25 31-12-85 Xerox copy of the Local Head Office circular about Appointment of temporary employees in subordinate cadre

For the Respondent/Management : ----

Description

Ex . No. Date

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

Хегоx copy of the settlement. 9-01-91

M5

Xerox copy of the settlement .

30-07-96

M6 09-06-95 Хетох 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

25-10-99der passed in CMP No.16289 and 16290/99 in W.A. No. 1193/99 8078

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7, 1929

नई दिल्ली , 27 अगस्त, 2007

का.आ. 2801.-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 113/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था । [सं. एल -12012/397/1998- आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 27th August , 2007

S.O. 2801.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 113 / 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 27-8-2007 .

[No. L- 12012/397/ 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. 113/2004 [Principal Labour Court CGID No 103/99] (Inthe inatter ofthe dispute for adjudciation under clause (d) of sub - section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen)

BETWEEN

SriG.Deenadayalan

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative .

For the Management : Mr. F.B. Benjamin George , Advocate

AWARD

1. The Central Government Ministry of Labour, vide OrderNo. L- 12012/397/ 98 - IR (B - I) dated 08-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

[PART II-SEC . 3 ( ii) ] thedispute on its file as CGID No. 103/99 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. 113/2004.

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

"Whether the demand of the workman Sri G.Deenadayalan wait list No. 443 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled ?"

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

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Chidambaram branch from 09-03-1981 . The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter, filed a copy of settlement 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 09-03-1981 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 required 8079

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3 (ii ) ]

whentheir case was espoused by State Bank of India Staff 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 .

Federation which resulted in five settlements dated 17-11-87, 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 ( 3 ) ofI.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 443 in waitlist of Zonal Office , Trichy . So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank .It is false to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment. Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement, employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C ) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 . the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 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 estoppedfrom questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any unión so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Statusto Workmen) Act , 1981 does not 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 settlementdrawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was 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 THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

8080

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 iabour . Further , for circleof 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 ) 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. 443 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 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 .

:

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 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 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 8081 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 ( ii ) ]

inclusion except his bald statement . Further , accordingto MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard 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 asperBipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis. In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . Itisfurther contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex.M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case oftemporary employees in the matter of absorption . Therefore, it is violative of Articles 14 & 16 of Constitution of India: Therefore, the Petitioner contended that preparation ofEx. M 10 namely wait list is not in conformity with the instructions of Ex.M2 and non- preparation ofseparate panels amounts to violation of circular . Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates, date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex . M1 was not produced at the time of conciliation proceedings heldduring the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking itas a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacaney , they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V -A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit ofthe workmen to whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent / Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that onbehalf of the Petitioner that Ex .W2 , W3 and W8 as well as Ex. -M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on e statutory in character . Further , a absorption and which combined study of Ex.Mland the averments of MW1 and MW2 and their testimonies during the cross- examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into'A, B and C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come-- last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex.Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave /casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex.W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by theRespondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving 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 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- 8082

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[PART II-SEC . 3 (ii ) ]

and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It 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 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 .

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 ofdepriving them of the status and privileges ofpermanent 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

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 8083 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3( ii ) ]

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 . V- s . STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud , misrepresentation or concealment of facts or even corruption and other inducements , it could be subject- matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent/Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

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 KeralaHigh Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor 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 of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the I.D. Act and (ii ) those arrived at in the course of conciliation proceedings under section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement of the second category made with a recognised majority union has extended application as it

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[PART II SEC . 3 ( ii) ]

:

workman to hardship involved in moving the machinery again . " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead 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. whereinthe Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that "the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not ,from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings 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 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 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 inthe services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry ofthe panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs .. UNION OF INDIA wherein the Supreme Court has held that" candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given . without reference to the existence of a vacancy. The direction in effect means that every ad-hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling 8085 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

[ भाग II- खण्ड 3( ii ) ]

such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ ( Supp . ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following, principle of ' last come first go ' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in, banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how , if the Petitioner has shown anything , the Respondent/Bank is readyto establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore, the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even 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 isnot 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 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 rot m...de by following a due 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 appointinent; (d ) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad- hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one. From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation 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 suclı 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 8086

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC. 3 ( ii) ]

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

18. Further , the representative for the Petitioner contended that in similar cases , this Tribunal had ordered for reinstatement with back wages and these disputes are also similar in nature and hence , the Petitioners are entitled 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 , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " itis not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that "only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the 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 entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work , I find the Petitioner is not entitled to any relief as claimed by him . No Costs .

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

K. JAYARAMAN , Presiding Officer

Witnesses Examined : ----

Forthe Petitioner

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claimn regularisationregularisation ofofhis 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 G. Deenadayalan 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 . MI .

W2

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 waitlist . Further, the Petitioners have not questionedthe settlement and they have not alleged that settlement was

20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 .

[ भाग II- खण्ड 3 ( ii) ]

8087.

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

Date

Ex . No.

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

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai About filling up of vacancies of messenger posts .

W7 25-03-97 Хегox 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 do messengerial work .

W9 13-06-89 Xerox copy of the service certificate issued by Chidambaram Branch W10 Nil

Xerox copy of the administrative guidelines in Reference book on staff matters issued by respondent/bank regarding recruitment to subordinate cadre & service conditions .

W11 Nil Xerox copy ofVol . III of Reference book onStaff matters upto 31-12-95 .

06-03-97

W12

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

W13

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

06-03-97

W14

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

17-03-97

W15

Xerox copy of the service particulars- J.Velmurugan .

W16 26-03-97 Хегох сору 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 of Madurai Circle .

Ex. No. Date

Description

W19 13-02-95 Xerox copy of the Madurai Module circular letter about engaging temporary employees from the panel of wait list .

09-11-92

W20

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

W21 09-07-92 Xerox copy of the minutes of Bipartite meeting.

09-07-92

W22

Хегох соpy of the settlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

07-02-06

W23

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

31-12-85

W24

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

For the Respondent/Management: ----

Ex. No. Date

Description

M1

Xerox copy of the settlement .

17-11-87

M2

Xerox copy of the settlement .

16-07-88

Xerox copy of the settlement .

M3 27-10-88

Xerox copy of the settlement .

M4 09-01-91

M5

Xerox copy of the settlement .

30-07-96

M6 09-06-95 Хетоx 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.

25-10-99

M11

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 , 8088

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 1929

[PART II-SEC . 3 ( ii ) ] नई दिल्ली , 27 अगस्त , 2007

thedispute on its file as CGID No. 102/99 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. 112/2004.

का.आ. 2802.-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 112/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/396/1998- आईआर ( बी- I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman ShriK. Kaliyamoorthy 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 :-

S.O. 2802. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref . No. 112/ 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 27-8-2007 .

[No. L- 12012/396/ 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. 112/2004

[Principal Labour Court CGID No. 102/99 ]

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

BETWEEN

Sri M. Kaliya Moorthy

: I Party/Petitioner

AND

The Assistant General Manager , II Party/Management StateBank of India , Region - I Trichirapalli

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram ,

Authorised Representative.

For the Management : M/ sV. Sunder Anandan ,

Advocates

AWARD

1. The Central Government Ministry of Labour, vide Order No. L- 12012/ 396/ 98 - IR (B - I) dated 08-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

The Petitioner was sponsoredby Employment Exchange for the post of sub- staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination. He was appointed on temporary basis at Villupuram Main branch from 22-09-1982. The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filedby State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank , in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , theRespondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Villupuram Main branch . He was called for an interviewby a Committee appointed by Respondent/Bank in this regard . But , they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 09-03-1981 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Villupuram Main branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97.

8089

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 ,1929

[भाग II- खण्ड 3 ( ii) ]

Hence , the Petitioner raised a dispute with regard to his non-employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him 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 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 .

Federation which resulted in five settlements dated 17-11-87,16-07-88 , 07-10-88, 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) ofI.D. Act . In terms thereof , the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 370 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 employe 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 aggregáte temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 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 correctto say that documents and identity of Petitioner was verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise. The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement. The settlementdrawn under provisions of Sections 18 ( 1 ) and 18( 3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was 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 8090

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

[PART II-SEC . 3 ( ii) ]

Point No. 1 :

discharging the work of permanent messenger . As per settlements , vacancies upto 31-12-94 were filled up against the wait list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment ofdaily wages/ casual labour . Further, for circle ofChennai wait list 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 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 . Mi. The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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

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 8091 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 ( ii) ]

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 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 bythe Respondent/Bank by combing equals with unequals . Itisfurther contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex.M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait list is not inconformity with the instructions of Ex.M2 and non -preparation of separate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex. W2 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 inThe Hindu dated 1-8-88 . Furthermore, wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M 10 has been prepared in violation 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 producedthe 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 theprincipal clause 2 (oo) of the I.D. Act, 1947.

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Courthas held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit ofthe workmen to whom section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that on behalf of the Petitioner that Ex .W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further, a combined study of Ex.MI and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . 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 inessengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex.W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex .W2 four types of waiting lists have to be prepared. But the Respondent/ Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex.M1 , M3 and M4 respectively . But, 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 , accordingto MWI wait list under Ex.M10 was prepared on 2-5-92 but

3855G1 /2007-20 8092

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[PART II-SEC . 3 (ii ) ]

case, The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It 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 .

:

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 HLD. 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 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 , 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

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 the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 8093 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 ( ii) ]

with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject -matter of yet another industrial dispute which an appropriate Govt . may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore, it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the

same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent /Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated inservice with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid . Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

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 wordin , subjecting the poor workman to hardship involved in moving the machinery again. " It further hid tout " the Tribunal should 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.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 hefore 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 of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " Itfurther held that "there may be exceptional cases , where there may be allegations of mala fides , fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration." Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliationproceedings 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 8094

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC. 3 ( ii) ] 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 1993 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunai 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 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 Newsp..pers P. Ltd. case reported in AIR 1993 SC 569 the Supre Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view , it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pieadings 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 .

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 ofthe impending absorption of steam- surplus staff and a policydecision 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 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 mała 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 8095

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

[भागण्ड 3( ii) ]

their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that "Under Section 25G of the I.D. Act retrenchment procedure following principle of ' last come first go ' is not mandatory 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 .

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 envisagedby 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 . By doing so , it will be creating another mode of public appointment which is not permissible ." Further , the Supreme Court while layingdown the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further, in CDJ 2006 SC 443 NATIONAL FERTILIZERS at the time of his appointment; (d) his record of service sinc s appointment is not satisfactory. These are the add al problems indicated by us in para 12 which would in giving of such blanket orders . None of the arisu 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 corntinuance 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 einployees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one. From this , the impugned directions must be held to be totally untenable and unsustainable . Thus , the Supreme Court set aside the orders oflower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS Vs. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation ofappointment in excess of sanctioned posts . "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad-hoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not 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 , 8096

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 1929

[PART II-SEC . 3 (ii )]

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

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

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 DEVELOP- MENT CORPORATION Vs. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake ofprevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore ."

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 day the 31st January, 2007.)

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

Witnesses Examined :-

For the Petitioner

WWI Sri M. Kaliyamoorthy WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri T. L.Selvaraj

Documents Marked :-

Ex. No. Date

Description

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

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

[भाग II-खण्ड 3 ( ii ) ]

Ex. No. Date

Description

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx ,M1 .

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

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

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

Nil

W8

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

W9 13-06-89 Xerox copy of the service certificate issued by Thirukkoviloor Branch .

W10 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

W11 Nil

Xerox copy ofVol . III of Reference book onStaff matters upto 31-12-95. 06-03-97

W12

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

06-03-97

W13

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

06-03-97

W14

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

17-03-97

W15

Xerox copy of the service particulars - J. Velmurugan.

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 .

8097

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

Ex.No. Date

Description

Feb. 2005

W18

Xerox copy of the pay slip of T. Sekar forthe 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.

W21 09-07-92 Xerox copy of the minutes of Bipartite meeting.

09-07-92

W22

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

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

31-12-85

W24

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

For the Respondent/Management :---

Description

Ex . No. Date

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

Xerox copy of the settlement.

M4 09-01-91

Xerox copy of the settlement .

M5 30-07-96

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 of High Court of Orissa .

M9 10-07-99 Xerox copy ofthe order of Supreme Court inSLP 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 .

8098

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA. 7 , 1929

[PART II SEC. 3 ( ii) ] नई दिल्ली , 27 अगस्त , 2007

thedispute on its file as CGID No.99/99 and issued notices to both parties . Both sides entered appearance and filed their clainı 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. 109/2004.

का.आ. 2803.--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 109/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/388/1998- आईआर( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

NewDelhi , the 27th August , 2007

"Whether the demand of the workman Shri N. Velusamy wait list No. 219 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. 2803. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref . No. 109/ 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 27-8-2007.

[No. L- 12012/388/ 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. 109/2004

[Principal Labour Court CGID No. 99/99]

(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

SriN.Velusamy

: 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 .

Forthe Management : M/sV. Sundar Anandan , Advocates

AWARD

1. The Central Government Ministry of Labour , vide OrderNo. L- 12012/388/98 - IR (B - I) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Chidambaram branch frorn 08-04-1981 . The Petitioner was orally informed that his services were no more required. The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court. The Respondent/ Bank , in addition to its counter , filed a copy of settlement underSection 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A , B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the 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 08.04.1981 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Pinnalur 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 .

8099 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii) ]

Hence, the Petitioner raised a dispute with regard to his non-employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent /Bank , it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party tothe settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

Federation which resulted in five settlements dated 17-11-87, 16-07-88,07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18( 3 ) of I.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 219 in waitlist of Zonal Office, Trichy . So far 212 wait listed temporary candidates, out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is falseto allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence, they were appointed. Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category ( A) the temporary employees who were engaged for 240 days were to be considered and under category; ( B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block 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 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 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 219 , he was not appointed . The said settlements were bona fide which were the only workahle 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

3855 G1/2007-21 8100

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC . 3 ( ii )]

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 forthe appointinent of temporary employees . After the expiry of wait list , the Petitioner has no claim for permanent absorption . Hence , for all these reasons , the Respondent prays to dismiss the claim with costs .

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank inpermanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 ( Civil ) 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 eniployment. 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 workinen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence , the Petitioner prays that an award may be passed in his favour.

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

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

(i) "Whether the demand of the Petitioner in Wait List No. 219 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 ?"

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 tobe reinstated . Learned representative for the Petitioner 8101 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 ,1929

[ भाग II-खण्ड 3 ( ii) ]

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 attemptto wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . Itis further contended on behalf of the Petitioner that as perdeposition of 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 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 narnely 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 advertiseinent 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 . M ! was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex. M10 before this Tribunal marking itas a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further, even before or after the settlement on absorption of temporary exaployees , the expression that they were

engaged in leave vacancy was used as a device to take them out of the principala 2 ( 2 ) of the L.D. Act, 1947 .

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit ofthe workmen to whom Section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.M1 and the averments of 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 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 messengeria ! work is in contravention of the guidelines mentioned in Refcrence 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 amendracat 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 MW 1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , accordingto MWI wait list under Ex . 110 was prepared on 2-5-92 but 8102

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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 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 .

Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employworkmen as 'badlies' , casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2 (e ) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ) , Hyderabad, it is neither a 18 (3 ) settlement nor 12( 3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . M1 to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

10. But , as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view 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 8103

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[भाग II- खण्ड 3 ( ii) ]

settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, must be binding on the contesting workmen also." He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being goodwill between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject- matter of yet another. industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped 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 is contended that mere wording of reference is not decisive inthe matter oftenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that " mere wording of reference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further , he relied on therulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD. Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that" therefore a settlement arrived at in the course ofthe conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent , it departs from the ordinary law of contracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " Itfurther held that " there may be exceptional cases , where there may be allegations ofmala fides, fraud or even corruption or other inducements . But, in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i ) those arrived at outside the conciliation proceedings under Section 18( 1 ) of the 1.D. Act and ( ii ) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement 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 8104

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[PART II SEC. 3 ( ii )] into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits ." Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P.Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of 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 alieged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank , I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings ' reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V. VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy . In that case , pruning of select list on reduction in number of vacancies was made in view ofthe impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that" in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6SCC584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had cometo an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad -hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy: (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post 8105

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[भाग II- खण्ड 3 ( ii) ]

their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp . ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come - first go ' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank. Any how , if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent /Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even 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 toprevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature isnot aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain- not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed shouldbe directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while 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 at the time of his appointment; ( d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover, from the mere continuation of an ad - hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of Lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation ofthese employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned . But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed 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 such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , 8106

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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.

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 Indía , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION Vs. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

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

(Dicated to the P.A. , transcribed and typed by him ,

corected abd pronounced by me in the open court on this day the 31st January, 2077.)

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

Witnesses Examined:---

Forthe Petitioner WW1 Sri N.V.Velusamy WW2 Sri V. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :----

Ex. No. Date

Description

WI

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,

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

8107 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाय II- खण्ड 3 ( ii) ]

Ex. No. Date

Description

Ex. No. Date

Description

Feb. 2005

W18

W2 20-04-88

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 administrative guidelines issued by Respondent/Bank for implementation ofEx. M1.

13-02-95

W19

W3 24-04-91

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 .

W20 09-11-92

W4 01-05-91

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.

W21 09-07-92

W5 20-08-91

Xerox copy of the minutes of Bipartite meeting..

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

W22 09-07-92

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

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

W7 25-03-97

W23 07-02-06

Xerox copy ofthe circular of Respondent/ Bank to all Branches regarding identi- ficationofmessenger vacancies and filling them before 31-3-97.

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

Nil

W8

W24 31-12-85

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

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

W9 01-07-85 Xerox copy of the service certificate issued by Pinnalur Branch .

For the Respondent/ Management: ----

W10 Nil

Description

Ex . No. Date

MI

Xerox copy of the settlement .

17-11-87

Xerox copy of the settlement .

M2 16-07-88

Xerox copy of the administrative guidelines in reference book on staff matters issuedby Respondebnt/bank regarding recruitment to subordinate cadre & service conditions .

M3

Xerox copy of the settlement.

27-10-88

WI1 Nil

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

Xerox copy of the settlement .

M4 9-01-91

W12 06-03-97

Xerox copy of the settlement .

MS 30-07-96

M6 09-06-95

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

Xerox copy of the minutes of conciliation proceedings.

06-03-97

W13

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

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

M3 15-05-98

06-03-97

W14

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

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

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

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

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

26-03-97

W16

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

M11 25-10-99

31-03-97

W17

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

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

3855 G1/2007-22 8108

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 1929

[PART II-SEC. 3 ( ii) ] नई दिल्ली, 27 अगस्त, 2007

taken the dispute on its file as CGID No. 273/99 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. 176/2004 .

का.आ. 2804.-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 176/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/555/1998 - आईआर( बी-I ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Shri K. Rajendran, wait list No. 299 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. 2804. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the Award (Ref. No. 176/ 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 27-8-2007.

[No. L- 12012/555/ 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. 176/2004

[Principal Labour Court CGID No.273 /99]

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

BETWEEN

SriK. Rajendran

: I Party/Petitioner

AND

The Assistant General Manager , Il PartyManagement 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 , Advocate

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Kullanchavadi branch from 12-12-1984. 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 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 of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption ofClass IV temporary workmenwho 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 Kullanchavadi 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 12-12-1984 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Kullanchavadi 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 1. The Central Government Ministry of Labour , vide Order No. L- 12012/ 555 /98 - IR (B - I ) dated 26-04-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has attend the office from 1-4-97 . Hence , the Petitioner raised a 8109 [भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7, 1929

dispute with regard to his non-employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number of days workedby Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to 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 .

whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 17-11-87 , 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) of I.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 299 in waitlist of Zonal Office , Trichy . So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent /Bank . It is false to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement, employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category; (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered. As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary èmployees 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 299 , 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 frutitioner was engaged.

4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18( 1 ) and 18(3) of I.D. Act in lieu of provisions of law, retrenchment and implementedby Respondent/ Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and 8110

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 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 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 far 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 same years , the.Petitioner in this case and other Petitio..ers in the connected disputes were terminated without any notice . Since the Respondent/ Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 ( Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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 eniployment . 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 ofIndia Staff Federation were under Section 18 ( 1) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/ Bank . Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights of the Petitioner. Hence , the Petitioner prays that an award may be passed in his favour.

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

(1) "Whether the demand of the Petitioner in Wait List No. 299 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 teinporary 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 L.D.Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible 8111

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग 11- खण्ड 3 (ii) ]

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 settlernent 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 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 MWI wait list under Ex.M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after. due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different anddistinct categories . But , Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter 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 ofseparate panels amounts to violation of circular. Secondly , it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released/published even after 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 thewait list Ex. M10 before this Tribunal marking it as a confidential document .It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take to be reinstated . Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted only for the benefit ofthe workmen to whom Section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex. W2, W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . MI and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause I of Ex . MI deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a ) of Ex.MI provides an opportunity to persons who were engaged on casual basis and allowed to work in leave /casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further, engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copyofwhich is marked as Ex . W8 . Further , the appointment ofdailywage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances, the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/ Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M 10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex . M10 was prepared , but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. MI , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except his bald statement . Further, accordingto 8112

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 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 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 oftheirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

them out of the principal clause 2 (00) of the I.D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated. Further, the representative ofthe Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employworkmen as 'badlies', casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore, the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2( e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/ Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also 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. M1 to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex. M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence

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 ofthe 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 8113

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7, 1929

[ भाग II- खण्ड 3 ( ii ) ]

of the establishment . Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also." He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will ofthe parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentation or concealment 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 ofthe Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery length 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 II workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course ofthe conciliation proceedings with a recognised majority unionwill be binding on all workmen 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 unionfrom scuttling the settlement . " It further held that " there may be exceptional cases , where there may be allegations ofmala fides, fraud or even corruption or other inducements. But , in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 К.С.Р. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that "settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 (1) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3). A settlement of the first category has limited application 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 8114

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

[PART II-SEC . 3 ( ii )] again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT , MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner . " He also argued thatin Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, itshould consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it frained 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, 1 find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it isnot questioned by any of the unions of the Respondent/ Bank , I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination

in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy. " In that case, pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 6SCC 584 SYNDICATE BANK & ORS . VS. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion oftheir names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore, the learned Single Judge and the Division Bench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF 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 employces 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 8115 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 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 pernitted 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 tempurary 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 isnot 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 night 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 employce or a casualwage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or inade permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " door; (c) he was not eligible and qualified for the post at the time of his appointment ; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied uponby the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of an ad-hoc employee for one year, it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of Lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. " So far as the question of confirmation ofthese employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad -hoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed 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

3855 GI /2007-23 8116

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

[PART II-SEC . 3 (ii )]

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

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

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 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 .

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 entitledto be absorbed in regular service or made permanent merely on the strength of such continuance of work, I find the Petitioner is not entitled to any relief as claimed by him . No Costs .

21. Thus , the reference is answered accordingly .

(Dicated to the P.A. , transcribed and typed by him, corected abd pronounced by me in the open court on this daythe 31st January, 2077.)

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

WWI Sri K. Rajendran WW2 Sri V. S. Ekambaram

For the Respondent MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked: ---

Ex. No. Date Description

17. 1 find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/ Bank and Federation , at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the wait list. Further, the Petitioners have not questioned the settlement and they have not alleged that settlement was

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

8117 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii ) ]

Ex. No. Date

Description

Date

Description

Ex. No.

17-03-97

W20

W2 20-04-88

Xerox copy of the service particulars- J. Velmurugan.

Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex .MI .

26-03-97

W21

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

W3 24-04-91

31-03-97

W22

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

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

Feb. 2005

W23

W4 01-05-91

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

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

W5

13-02-95

W24

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

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

W6

09-11-92

W25

15-03-97

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

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

09-07-92

W7

W26

25-03-97

Xerox copy of the minutes of Bipartite meeting.

09-07-92

W27

Xercx copy of the circular of Respondent/ Bank to all Branches regarding identification of messenger vacancies and filling them before3 1-3-97 .

Nil

W8

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 .

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

07-02-06

W28

W9 02.12.87 Xerox copy of the service certificate issued by Manjakuppam Branch.

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

10.08.88

WIO

31-12-85

W29

Xerox copy of the service certificate issued by Tiruppapuliyur Branch.

15.06.89

W11

Xerox copy of the service certificate issued by Kullanchavadi Branch .

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

20.05.91

W12

For the Respondent/Management : ----

Xerox copy of the service certificate issued by Tiruppapuliyur Branch .

Date

Ex . No.

Description

20.01.97

W13

MI

Xerox copy of the settlement .

17-11-87

Xerox copy of the service certificate issued by Manjakuppam Branch.

M2

Xerox copy of the settlement .

16-07-88

W14 Nil

M3

Xerox copy of the settlement .

27-10-88

M4

Xerox copy of the settlement .

09-01-91

M5

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

Xerox copy of the settlement .

30-07-96

M6 09-06-95

W15 Nil

Xerox copy ofthe minutes ofconciliation proceedings .

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

M7 28-05-91

1992-97

W16

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

Xerox copy of the service certificate issued by Manjakuppam Branch .

M8 15-05-98

06.03.97

W17

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

M9

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

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

06-03-97

W18

M10 Nil

Xerox copy of the wait list of Trichy Module.

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

25-10-99

MII

06-03-97

W19

Χεινανωμή οἱ τe order passed in CMP No.16289 and 16290/99 in W.A. No 18000

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

8118

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

नई दिल्ली , 27 अगस्त, 2007

का.आ. 2805.-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 174/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था । [सं. एल -12012/553/1998- आईआर( बी -1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 27th August , 2007

S.O. 2805. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 174/ 2004) of the Central Government Industrial Tribunal -Cuin- Labour Court , Chennai as shown in the Annexure in the Industrial Dispute between the management of State Bank of India and their workmen , received by the Central Government on 27-8-2007.

[No. L- 12012/ 553/ 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 Industria ! Dispute No. 174/2004

[Principal Labour Court CGID No. 271/99 ] (Inthematter ofthe dispute for adjudication under clause(d) ofsub - section ( 1 ) and sub -section 2( A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , between the Management of State Bank of India and their workmen)

BETWEEN

Sri M. Rajamanickam

: I Party/Petitioner

AND

The Assistant General Manager , : II Party/ Management StateBank of India , Region - I Trichirapalli

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram , Authorised Representative .

: M/ sK.S.Sundar , Advocate For the Management

AWARD

I. The Central Government Ministry ofLabour , vide Order No. L- 12012/ 553 / 98 - IR ( B -I ) dated 26-04-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken

3 ( ii ) ]

[PART 11-SEC .

thedispute on its file as CGID No.271 /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. 174/2004.

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

" Whether the demand of the workman Shri M. Rajamanickam , wait list No. 615 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so , to what relief the said workman is entitled ? "

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

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Kallakuruchi branch from 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 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 ofthe Kallakuruchi branch. He was called for an interview by a Committee appointed by Respondent / Bank in this regard . But , they have not inforined 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 1982, the Petitioner has been working as a teinporary messenger and some time performing work in other branches also . While working on temporary basis in Kallakuruchi 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 8119

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non-employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to 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 tothe settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

17-11-87, 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) ofI.D.Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 615 in waitlist of Zonal Office , Trichy . So far 212 wait listed temporary candidates , out of652 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid teinporary 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 615 , 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 settlementsdirectly or indirectly and his claim is liable to be rejected. Further, the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Statusto Workmen) Act, 1981 does not 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 perinanent messenger . As per 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 settlementdrawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of 1.D. Act in lieu of provisions of law, retrenchment and implementedby Respondent/Bank . The claim of the Petitioner is not bonafide and made with ulterior motive. The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espousedby State Bank of India Staff Federation which resulted in five settlements dated 8120

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Point No.1 :.

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines /circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis.After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of the workmen concemed andwhile the matter was pending in Writ Petition No. 542 ( Civil) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent, wherein it is stated that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank . Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is 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. 615for 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? "

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 251H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner 8121

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[ भाग 11- खण्ड 3 (ii) ]

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 towriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex.M10 comprises of both messengerial and non -messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals. Therefore , both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex. M 10 namely wait list is not in conformity withthe instructions of Ex.M2 and non -preparation of separate panels amounts to violation of circular. Secondly , it has not beenprepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released/published even after theCourt order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/ Bank to release the list of successful candidates pursuant to the first advertisement published in 'The Hindu' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates, date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex. M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo ) of the 1.D. Act , 1947 .

contended that in 1996 LAB & IC2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category 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 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 I of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause I is illegal . Clause 1 (a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary einployees is not valid . Further , engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copy ofwhich is marked as Ex. W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / instructions . In such circumstances, the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions 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.M 10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively . But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MW1 wait list under Ex . M10 was prepared on 2-5-92 but 8122

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[PART II -SEC . 3 ( ii) ]

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds. have not completed 240 days , since the Respondent/ Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases, the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40to 50 years and for no fault of theirs , they find themselves stranded in life midstream. They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour .

Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative ofthe Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employworkmen as 'badlies ', casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus, the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it . Though clause 2(e ) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim fór 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 onlywith regard to modification of Ex. M1 to M4 made in terms of Ex . M6. Though the Respondent/ Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , 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 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 8123

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[ भाग II-खण्ड 3 ( ii ) ]

the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will ofthe parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment offacts or even corruption and other inducements , it could be subject- matter of yet another industrial dispute which an appropriate Govternment may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances, it cannot be said that it is not binding on them and he is estopped from disputing the same .

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

12. But, as against this on behalf ofthe Petitioner it is contended that mere wording of reference is not decisive inthe matter 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 ofreference is not decisive in the matter of tenability ofa reference. Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only 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 was positioned down in the seniority . The Respondent/ Bankwas engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bona fide which were the only workable solution and isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further , he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12 ( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course ofthe conciliation proceedings with a recognised majority union will be binding on all workmen 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 ILLJ 308 К.С.Р. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 (1) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18(3) . A settlement of the first category has limited application and binds merely parties to it and settlement ofthe second category made with a recognised majority union has extended application as it will be binding on all workmen ofthe establishment. Even in case of the first category, if

3855 G1/2007-24 8124

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II -SEC . 3 ( ii ) ] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the questionwhether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAGNATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN Vs. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order 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 frained to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination inthis appeal is whether a candidate whose name appears:

in the select list on the basis of competitive examination acquires a right of appointment in 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 ofthe 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 oftheir names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIAwherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by hiın . 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 8125 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

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 only directory, on sufficient grounds shown , the eni yer 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 permapermanent 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 sorne employment so as to eke out hislivelihood 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 einployee 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 inade permanent merely on the strength of such continuance , if the original appointment was not nade 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 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 I ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisatio 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 incuinbent 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 thereforc , 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 retrenchinent 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 , 8126

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

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, SUJAK Vs. SURINDER KUMAR, the Supreme Court has hed that " it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further, in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . " 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service . Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list preparedby the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

[PART II-SEC. 3 ( ii ) ] stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

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

(Dicated to the P.A. , transcribed and typed by him , corected abd pronounced by me in the open court on this day the 31st January, 2077.)

K. JAYARAMAN, Presiding Officer Witnesses Examined :-

For the Petitioner

WWI Sri M. Rajamanickam WW2 Sri V. S. Ekambaram For the Respondent MWI 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 to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation , at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the waitlist. Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex. M1 .

8127

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 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 dailywages based on Ex . W4.

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

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of 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 08-02-83 Xerox copy of the service certificate issued by Kallakurichi Branch .

W10 Nil Xerox copy of the service certificate issued by Kallakurichi Branch .

21-11-95

WI1

Xerox copy of the service certificate issued by Kallakurichi Branch.

W12 Nil

Xerox copy of the service certificate issued by Kallakurichi Branch.

W13 Nil

Xerox copy of the administrative guidelines in reference book on staff matters issued by respondent/bank regarding recruitment to subordinate cadre & service conditions .

W14 Nil Xerox copy ofVol . III ofReference book on Staff matters upto 31-12-95 .

06-03-97

W15

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

06-03-97

W16

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

06-03-97

W17

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

17-03-97

W18

Xerox copy of the service particulars- J. Velmurugan .

26-03-97

W19

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

Ex . No. Date

Description

W20 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

W21 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe month of February, 2005 wait list No. 395 ofMadurai Circle .

W22 13-02-95 Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list.

W23 09-11-92 Xerox copy of the Head office circular No. 28 regarding Norms for sanction of messenger staff.

09-07-92

W24

Xerox copy of the minutes of Bipartite meeting.

09-07-92

W25

Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms -creation of 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

Xerox copy of the settlement .

16-07-88

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 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings .

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

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

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

Nil

M10

Xerox copy of the wait list of Trichy Module.

25-10-99

Mil

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

8128

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II- SEC . 3 ( ii ) ] नई दिल्ली, 27 अगस्त, 2007

the dispute on its file as CGID No. 270/99 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. 173/2004 .

का.आ. 2806. 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 173/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/545/1998- आईआर ( बी -1 ) ]

अजय कुमार, डेस्क अधिकारी

New Delhi , the 27th August, 2007

"Whether the demand of the workman Shri G. Murugaian wait list No. 380 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. 2806. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. 173 / 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 27-8-2007 .

[No. L- 12012/545 / 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. 173/2004

[Principal Labour Court CGID No. 270/99]

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

BETWEEN

SriG.Murugaian

: I Party/Petitioner

AND

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

APPEARANCE

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

For the Management : M/sK. S. Sundar , Advocate

AWARD

1. The Central Government, Ministry Labour vide Order No. L- 12012/545 /98 - IR ( B - I ) dated 26-04-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Villupuram Main branch from 10-12-1981 . The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition 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 Villupuram Main branch . He was called for an interview by aCommittee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 10-12-1981 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Villupuram Main branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97.

[ भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन7, 1929

8129 Hence, the Petitioner raised a dispute with regard to his non-employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522 (4) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The Respondent/ Bank has also not observed the instructions regarding grant of increinents , leave, medical benefits etc. to the tempora,y 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 Stateinent alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18(3 ) of I.D. Act in lieu ofprovisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bonafide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioneddown in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff

Federation which resulted in five settlements dated 17-11-87, 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3) of1.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 380 in waitlist of Zonal Office, Trichy . So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose. When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category; ( B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category . ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements, out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listedat 380 , 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 waş verified before the Petitioner was engaged. It is also not correct to say that the Petitioner was [PART II -SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINΑ 7, 1929

8130

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 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 andwhile the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/ Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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

6. Again , the Petitioner filed a rejoinder to the Counter Statement of the Respondent , wherein it is stated that all the settlements made by the bank with the State Bank of India Staff Federation were under Section 18 ( 1 ) of the Act and not under Section 18 (3 ) of the Act . As per recruitment rules of the Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights 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. 380 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 employées in the Respondent/Bank under the guidelines and circulars issued by the Respondent/Bank from time to time and further , the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case , the Petitioner is not bound by settlement under Section 18 ( 1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987 , therefore , they have no valid and enforceable right for appointment , in the wake of strict instructions and circulars/ guidelines issued by the Respondent/Bank to the effect that temporary employees at branches/offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V - A ofthe I.D.Act and it is preposterous to contend that the 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 (ii) " To what relief the Petitioner is entitled ? " 8131

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3 ( ii) ]

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 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 MW1 wait list under Ex. M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case oftemporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait list is not in conformity with the instructions of Ex.M2 and non - preparation ofseparate panels amounts to violation of circular . Secondly , it has not beenprepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in 'The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex . M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex . M. 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex. MI was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent /Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 ( oo ) of the I.D. Act, 1947 .

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit ofthe workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable.It is further contended that on behalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . M1 and the averments of MW1 and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave / casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copy ofwhich is marked as Ex. W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent /Bank on casual, basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further, as per instructions 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, butitis mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further, accordingto MWI wait list under Ex . M10 was prepared on 2-5-92 but

3855G1/2007-25 8132

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[PART II-SEC . 3 ( ii) ]

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchmentfrom 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 1.Ds. have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240. days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault 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 employworkmen as ' badlies ' , casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex. M10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it . Though clause 2( e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/ Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment ofMW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/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 inodification of Ex . M1 to M4 made in terms of Ex. M6 . Though the Respondent/ Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . 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

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 8133

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii) ]

settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also."He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by the free will ofthe parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud , misrepresentation or concealment offacts or even corruption and other inducements, it could be subject- matter ofyet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

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

12. But, as against this on behalfofthe Petitioner it is contended that mere wording of reference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL, KOLLAM wherein the Kerala High Court has held that "mere wording ofreference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannoi 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 was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bona fide which were the only workable solution and isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that " therefore a settlement arrived at in the course ofthe conciliation proceedings with a recognised majority unionwill be binding on all workmen 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 ILLJ308 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 establishment. Even in case of the first category, if the 8134

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

[PART II-SEC . 3 (ii) ] into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAGNATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS , wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT , MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal 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 happilyframed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore, this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him .. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner. Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has 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 ofthe impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory . " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that theRespondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore, the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad -hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad-hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; ( c) he was not eligible and qualified for the post [ भाग II-खण्ड 3 (ii ) ]

8135

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

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 .

15. Learned Senior Advocate further argued that even inrecent decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad- hoc employees who by the very nature of their appointment , do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain- not at arms length since he might have been searching for some employment so as to eke ou : 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 ." at the time of his appointment; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such. wholesale , unconditional orders . Moreover , from the mere continuation of an ad -hoc employee for one year , it cannot be presumed that there is need for regular post. Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of oneunit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of Lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation ofthese employees whose entry itself was illegal and void is concemed, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation 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 , Further, in CDJ 2006. SC 443 NATIONAL FERTILIZERS 8136

[ PART II -SEC . 3 ( ii) ] THE GAZETTE OF INDIA SEPTEMBER 29, 2007 / ASVINA 7, 1929

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

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

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

LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore, is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 oftheConstitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days 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 . "

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 .

(Dicated to the P.A. , transcribed and typed by him , corected abd pronounced by me in the open court on this day the 31st January, 2077.)

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

Witnesses Examined :-

For the Petitioner

WWI Sri G.Murugaian WW2 Sri V. S. Ekambaram

For the Respondent MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :-

Ex. No. Date

Description

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

17. 1 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 of reference , they have not questioned the settlement nor the number allotted to each individual in the waitlist . Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even corruption or [ भाग II- खण्ड 3 ( ii) ]

Ex. No. Date

Description

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 .

WS 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 06.04.82 Xerox copy of the service certificate issued by Villupuram Branch .

03.05.84

W10

Xerox copy of the service certificate issued by Villupuram Branch .

W11 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by respondebnt/bank regarding recruitment to subordinate cadre& service conditions .

W12 Nil Xerox copy ofVol. III ofReference book onStaaffmatters 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 .

W15 06-03-97 Xerox copy of the call letter from Maduri zonal office for interview of messenger post-J. Velmurugan.

17-03-97

W16

Xerox copy of the service particulars - J. Velmurugan.

26-03-97

W17

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

8137

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

Ex . No. Date

Description

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 forthe month of February , 2005 wait list No. 395 ofMadurai Circle ,

W20 13-02-95 Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

W21 09-11-92 Xerox copy of the Head office circular No. 28 regarding Norms for sanction of messenger staff.

W22 09-07-92 Xerox copy of the minutes of 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 .

07-02-06

W24

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

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

For the Respondent/Management :----

Ex. No. Date

Description

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 .

9-01-91

Xerox copy of the settlement.

M5 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 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 .

8138

[PART II-SEC. 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

नई दिल्ली , 27 अगस्त, 2007

to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution of this-CGIT- cum- Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I.D. No. 172/2004 .

का.आ. 2807. औद्योगिक विवाद अधिनियम , 1947 ( 1947 का 14 ) की धारा 17 के अनुसरण में , केन्द्रीय सरकार स्टेट बैंक ऑफ इण्डिया के प्रबंधतंत्र के संबद्ध नियोजकों और उनके कर्मकारों के बीच , अनुबंध में निर्दिष्ट औद्योगिक विवाद में केन्द्रीय सरकार औद्योगिक अधिकरण , चेत्रई के पंचाट ( संदर्भ संख्या 172/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/532/1998- आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Shri M. Puthupattan , wait list No. 596 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. 2807.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 172/ 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 27-8-2007 .

[No. L- 12012/532 / 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. 172/2004

[Principal Labour Court CGID No. 266/99 ]

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

BETWEEN

: I Party/Petitioner

Sri M. Puthupattan

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 K.S. Sundar, Advocate .

AWARD

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Auroville International Township branch from 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 theyclassified the workmen under three categories namely A, B and C. Though the classification was unreasonable , theRespondent/Bank brought to the notice ofthe Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of theAuroville International Township 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 IVernployee . From 1984, the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Auroville International Township branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the saine 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 I. The Central Government , Ministry of Labour , vide Order No. L - 12012/ 532/ 98 - IR (B - I ) dated 26-04-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 266/99 and issued notices 8139

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[ भाग II- खण्ड 3 (ii) ]

dispute with regard to his non - employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent tothis Tribunal , the reference framed did not satisfy the grievance ofthe Petitioner , he has made a fresh representation to Govt . to reconsidèr 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 notaware 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 ofthe Petitioner is against the provisions ofpara 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.

17-11-87 , 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 ( 3 ) ofI.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 596 in waitlist ofZonal Office , Trichy . So far 212 wait listed temporary candidates , out of652 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment. Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement , employees were categorised as A , B , and C.Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be . considered and under category; (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7,. the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended upto 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 596, 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 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/ 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

3855 GI/2007-26 8140

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

[PART II SEC . 3( ii)]

Point No. 1 :

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

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

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

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

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

(1) "Whether the demand of the Petitioner in Wait List No. 596for 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 ? "

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) ]

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to be reinstated . Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit ofthe workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore, the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute /relate to the circular instructions of the Respondent/ Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex. M1 and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause I of Ex . MI deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause I is illegal . Clause 1 ( a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers, farashes , cash coolies , water boys , sweepersetc. 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 ismarked as Ex . W8 . Further , the appointment of dailywage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances, the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter ofarriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the Respondent/ Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex . 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 onthe settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively. But, when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non-

inclusion except his bald statement . Further , according to 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 MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/ Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MWI wait list under Ex.M10 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 in conformity with the instructions of Ex . M2 and non -preparation of separate panels amounts to violation of circular . Secondly, it has not beenprepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994 . Furthermore , no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in 'The Hindu' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex. 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 8142

[PART 11--SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 / ASVINA 7 , 1929

and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds. have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent /Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

10. But , as against this , the learned senior counsel for the Respondent /Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised. Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 ( 3 ) of the 1.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 engaged in leave vacancy was used as a device to take them out ofthe principal clause 2 (oo) of the 1.D. Act, 1947. Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously whichis 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 . M1 to M4 made in terms of Ex . M6. Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore, they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . 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 8143

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[ भाग II- खण्ड 3 ( ii ) ]

extended application as it will be binding on all workmen ofthe establishment . Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will of the parties and is a pointer to there being 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 ever corruption and other inducements, it could be subject- matter ofyet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same.

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

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference 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 , 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, 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 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 19911 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 II workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen ofthe establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law ofcontracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations ofmala fides, fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 К.С.Р. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 (1) of the 1.D. Act and ( ii) those arrived at in the course of conciliation proceedings under Section 18 (3) . A settlement of the first category has limited application andbinds merely parties to it and settlement ofthe second category made with a recognised majority union has 8144

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC . 3 ( ii )] workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAG NATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER , LABOUR COURT , MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical inanner or a pedantie 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. 1 find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, 1 find the Petitioner is not entitled to question the settlement .

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 diseriminatory. " He further relied on the rulings reported in 1997 6SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inelusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/ Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coining 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 8145 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7, 1929

[ भाग II- खण्ड 3( ii) ]

such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp . ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come - first go ' is not mandatory but only directory, on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/ Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC I SECRETARY , STATE OF KARNATAKA Vs. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature isnot aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain- not at arms length since he might have been searching for some employment so as to èke 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 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 buta 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 ofregularising 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 8146

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ ASVINA 7 , 1929

[PART II-SEC . 3 (ii ) ]

not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/ Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services 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 bythe 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, 1 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 .

PointNo. 2 :

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 . "

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.

(Dicated to the P.A. , transcribd and tuped by him, corrected and pronounced by me in the open cpurt on this daythe 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 intobetween the Respondent/ Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as perwait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

For the Petitioner WWI Sri M. Puthu Pattan WW2 Sri V. S. Ekambaram

For the Respondent MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :-

Ex. No. Date

Description

17. 1 find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement , the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation, at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the waitlist . Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was

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

[ भाग II-खण्ड 3 (ii) ]

Ex . No. Date

Description

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/ Bank for implementation of Ex . M1 .

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

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

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of messenger vacancies and filling them before 31-3-97.

W8 Nil

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

W9 25-08-88 Xerox copy of the service certificate issued by Auroville International Township Branch .

W10 22-08-91 Xerox copy of the service certificate issued by Auroville International Township Branch .

W11 26-04-94 Xerox copy of the service certificate issued by Auroville International Township Branch .

W12 Nil

Xerox copy of the administrative guidelines in reference book on staff matters issued by respondent/bank regarding recruitment to subordinate cadre & service conditions .

W13 Nil

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

06-03-97

W14

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

06-03-97

W16

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

17-03-97

W17

Xerox copy of the service particulars - J.Velmurugan.

3855 GI/ 2007-27

8147

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

Ex. No. Date

Description

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

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

Feb. 2005

W20

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

W21 13-02-95 Xerox copy of the Madurai Module circular letter about engaging temporary employees from the panel of wait list .

W22 09-11-92 Xerox copy of the Head office circular No. 28 regarding Norms for sanction of messenger staff.

W23 09-07-92 Xerox copy of the minutes of 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 norins 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

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

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

M3

Xerox copy of the settlement .

27-10-88

M4 9-01-91 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 Xerox copy of the order in O.P. No. 2787/97 of High Court of Orissa .

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

M10 Nil

Xerox copy of the wait list of Trichy Module.

25-10-99

M11

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

8148

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

[PART II- SEC. 3 (ii) ] नई दिल्ली, 27 अगस्त, 2007

the dispute on its file as CGID No. 234/99 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. 165/2004 .

का.आ. 2808. 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 165/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[ सं. एल -12012/574/1998- आईआर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman. Sri M. Natesan, wait list No. 409 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. 2808. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. 165 / 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 27-8-2007 .

[No. L- 12012/ 574 / 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. 165/2004 [Principal Labour Court CGID No. 234/99 ]

[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. Natesan

:

I Party/Petitioner

AND

The Assistant General Manager , II Party/Management State Bank of India, Region -1 Trichirapalli

APPEARANCE

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

For the Management : Mr. F. B. Benjamin George, Advocate

AWARD

1. The Central Government, Ministry of Labour, vide Order No. L - 12012/574/ 98 - IR ( B - 1 ) dated 26-03-1999 has referred this dispute earlier to the Tarnil 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 teinporary basis at Karur branch from 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 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 workmenwho were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/ Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Karur branch. He was called for an interview by a Committee appointed by Respondent /Bank in this regard . But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee . From 1978 the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temprorary 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 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 8149 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 ( ii) ]

in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interviewdo not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer. Therefore , the Respondent's action in not absorbing hiın in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award . 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 henefits .

17-11-87 , 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation. proceedings and minutes were drawn under Section 18 (3 ) of1.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 409 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 inonths and under category (C ) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employecs 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 409 , 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 Tamii Nadu Industrial Establishment ( Conferment of Permanent Statusto 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 this identity of Petitioner was verified before thuoner was engaged .

It is also not correct to say the was discharging the work of permanent messenger . As per 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 contintious service . Hence , the question ofregular appointment / absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement. The settlement drawn under provisions of Sections 18 ( 1 ) and 18 ( 3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive. The Petitioner concealed the material facts that he was 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 8150

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 / ASVINA 7 , 1929

[PART II-SEC. 3 ( ii ) ]

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

Point No. 1 :

settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment 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 andwhile the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent /Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/ Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have . raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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

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

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

(1) "Whether the demand of the Petitioner in Wait List No. 409for 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 settleinent 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 8151 [भांग II- खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

inclusion except his bald statement . Further , according to MW1 wait list under Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P. No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex.M10 comprises of both messengerial and non -messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore, it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is not in conformity with the instructions ofEx .M2 and non - preparation of separate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994 . Furthermore, no wait list was released / published even after the Court order in WMP No. 11932/91 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 on absorption of temporary employees , the expression that they were Petitioners. who are retrenched messengers and are eligible to be reinstated. Learned representative for the Petitioner contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted only for the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore, the contention of the Respondent / Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that 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/ Ba 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 averınents of MW ! 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 leavc/casual vacancies of messengers , farashes , cash coolies, water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex .W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent /Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were givenmore beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been inforined about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex.W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which aremarked as Ex.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- 8152

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[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 of the Respondent/ Bank and they are entitled to the benefits under the provisions of 1.D. Act . It isfurther contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds. have not completed 240 days , since the Respondent/ Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 11 LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression ' actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or 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 teinporary 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 .

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 there fore, the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/ Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it. Though clause 2 (e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . TheRespondent/ Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ), Hyderabad , it is neither a 18 (3 ) settlement nor 12 (3 ) settlement as claimed by the Respondent /Bank which says onlywith regard to modification of Ex . MI to M4 made in terms of Ex . M6 . Though the Respondent / Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . MI to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme, in the

Respondent/Bank it was implemented only in the year 2001

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in vicw ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connecteddisputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3 ) of the 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 8153

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[भाग II- खण्ड 3 ( ii ) ]

extended application as it will be binding on all workmen ofthe establishment . Even in case of the first category, if the 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 whercin the Supreme Court has held that " settlement is arrived at by thefree will of the parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject- matter 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 ofthe Petitioner it is contended that mere wording of reference is not decisive in the 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 , KOLLAM wherein the Kerala High Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected . Furthermore , the said settlements were not questionedby any union and the settlements were bank level settlements and operate throughout the country . Further, he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12 ( 3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits, but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion , the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the 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 I LLJ 308 K.C.P. LTD . VS. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 (1) of the 1.D. Act and (ii ) those arrived at in the course of conciliation proceedings under Section 18 (3). A settlement of the first category has limited application andbindsmerely parties to it and settlement ofthe second category made with a recognised majority union has 8154

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[PART II-SEC . 3 ( ii) ] workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusingto answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENTPAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 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, 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 andtherefore , this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. 1 find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement.

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 beeri exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has

held that " the only question which falls for determination in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number 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 Supreine 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 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 8155

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[ भाग II- खण्ड 3 (ii ) ]

such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ ( Supp . ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of ' last come - first go ' is not mandatory but only directory, on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank. Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs.

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 cometo an end or of ad -hoc employees who by the very nature of their appointment , do not acquire any right . " Further, it has also held that " it is not as if, the person whe accepts an engagement either temporary or casual in nature isnot 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 terins 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 for applications which means he had entered by a back door; ( c) he was not eligible and qualified for the post at the time of his appointment ; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad-hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other. Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one. From this , the impugned directions must be held to be totally untenable and unsustainable. " Thus , the Supreme Court set aside the orders of Lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation ofthese employees whose entry itself was illegal and void isconcerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity." Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave 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

3855 G1 /2007-28 -8156

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process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise. " Further , in CDJ 2006 SC395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " itis not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only. because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . " 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service. Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

17. I find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations withregard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation , atthe 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

[PART II-SEC. 3 ( ii) ] not a bona fide in nature or it has been arrived at on account ofmala fide, misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

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

19. But , I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed. 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Courtprobably having regard to the changes in the policy decisions of the Governmnet in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , 1 find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/ Bank as alleged by him . Therefore, I find this point against the Petitioner .

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. K. JAYARAMAN , Presiding Officer Witnesses Examined : -

For the Petitioner WW1 Sri M. Natesan WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :-

Ex.No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex.M1 .

8157 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

Description

Ex. No. Date

Ex. No. Date

Description

Feb. 2005

W19

W3 24-04-91

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

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

13-02-95

W20

W4 01-05-91

Xerox copy of the Madurai Module circular letter about engaging temporary employees froin the panel of wait list .

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

WS

09-11-92

W21

20-08-91

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

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

W6

09-07-92

15-03-97

W22

Xerox copy of the minutes of Bipartite meeting.

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

09-07-92

W23

W7 25-03-97

Xerox copy of thesettlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

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

W24 07-02-06

Nil

W8

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

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

31-12-85

W25

Nil

W9

Xerox copy of the service certificate issued by Karur Branch.

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

21-10-80

W10

For the Respondent/Management:

Xerox copy of the service certificate issued by Karur Branch .

Ex. No. Date

Description

W11 Nil

MI

Xerox copy of the settlement .

17-11-87

M2

Xerox copy of the settlement .

16-07-88

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

M3

Xerox copy of the settlement .

27-10-88

W12 Nil

M4

Xerox copy of the settlement .

9-01-91

Xerox copy ofVol . III ofReference book onStaff matters upto 31-12-95 .

M5

Xerox copy of the settlement.

30-07-96

06-03-97

W13

M6 09-06-95

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

Xerox copy ofthe minutes of conciliation proceedings .

06-03-97

W14

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

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

M8 15-05-98

06-03-97

W15

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

M9

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

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

17-03-97

W16

Xerox copy of the service particulars- J. Velmurugan.

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

26-03-97

W17

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

25-10-99

M11

31-03-97

W18

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

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

8158

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 / ASVINA 7 , 1929

नई दिल्ली , 27 अगस्त , 2007

का.आ. 2809. 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 164/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था । [सं. एल -12012/ 525/1998- आईआर( बी -1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 27th August , 2007

S.O. 2809. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No. 164/ 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 27-8-2007 .

[No. L- 12012/525 / 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. 164/2004 [Principal Labour Court CGID No.226/99 ] [Inthe matter ofthe dispute for adjudication under clause( d) of sub - section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen]

BETWEEN

Sri K. Easwaran

[PART II- SEC. 3 (ii) ] Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 226/99 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. 164/2004 .

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

"Whether the demand of the workman Sri K. Easwaran , wait list No. 296 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled ?"

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

: I Party/Petitioner

AND

The Assistant General Manager, II Party/ Management State Bank of India , Region -1 , Z.O. , Trichirapalli

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative .

: M/s . K. Veeramani ,

For the Management

Advocates

AWARD

1. The Central Government , Ministry of Labour , vide OrderNo. L- 12012 /525 / 98 - IR (B - I) dated 19-03-1999 has referred this dispute earlier to the Tamil Nadu Princípał The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Periyakulam branch from 18-11-1981 . The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/ Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Periyakulam branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 18-11-1981 the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temprorary basis in Periyakulam branch , another advertisementby the Respondent /Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 8159

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7, 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 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 Petitiorner 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 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 .

Federation which resulted in five settlements dated 17-11-87, 16-07-88 , 07-10-88,9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) of1.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 296 in waitlist ofZonal Office, Madurai . So far 219 wait listed teinporary candidates , out of 492 waitlisted temporary employees ⚫were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot turn around and claim appointment . Such ofthose temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum. 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 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 296, 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 éstopped from making claiın as per Claim Statement. The settlement drawn under provisions of Sections 18 ( 1 ) and 18( 3 ) of 1.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and inade 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 8160

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 / ASVINA 7 , 1929

Point No. 1 :

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 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 clalm 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 Cour 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 listedworkmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies . Hence , the Petitioner prays that an award may be passed in his favour .

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

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

(0) "Whether the demand of the Petitioner in Wait List No. 296 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 ?"

9. On behalf of the Petitioner , it is contended that these Petitioners were recruited as témporary 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 8161

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

[ भाग II- खण्ड 3 ( ii) ]

Ex.M10 was prepared on 2-5-92 but there is no pleading in theCounter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , 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 by the Respondent/ Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MWI wait list under Ex.M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paidwages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore, both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption. Therefore , it is violative ofArticles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex. M 10 namelywait 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 lisťunder 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 -inleave 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. contended that in 1996 LAB & IC2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.MI and the averments of MW1 and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into 'A, Band C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 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 ofthe guidelines mentioned in Reference Book on Staff matters , copy ofwhich is marked as Ex. W8 . Further , the appointment ofdaily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions. In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service. Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively . But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non - inclusion except his bald statement . Further , according to MWI wait list under 8162

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

[PART II-SEC . 3 (ii) ]

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/ Bank and they are entitled to the benefits under the provisions of I.D. Act . It 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 therulings reported in 1985 11 LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or 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 .

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 inbreach of it . Though clause 2( e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circie and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . TheRespondent/ Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central) , Hyderabad , it is neither a 18 ( 3 ) settlement nor 12 (3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . M1 to M4 made in terms of Ex . M6 . Though the Respondent/ Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . MI to M5 . Above all , though the Respondent/ Bank has referred to voluntary retirement scheme , In the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

10. But , as against this , the learned senior counsel for the Respondent/ Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the ID . Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive. Further , they have concealed the inaterial facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 8163

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[ भाग II-खण्ड 3 ( ) ]

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 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 ofthe Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints 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 workınan to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 I LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentati or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS VS. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen ofthe establishment , even those who belong to the minority union which had objected to the same . To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement. " It further held that " there may be exceptional cases, where there may be allegations ofmala fides , fraud or even corruption or other inducements . But, in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 19971 LLJ 308 К.С.Р. LTD. VS. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that "settlements are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 ( 1) of the 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 application as it will be binding on all workmen ofthe establishment . Even in case ofthe first category, if

3855 G1/ 2007-29 8164

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

[PART II-SEC . 3 ( ii) ] 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 inatters also and the order of reference should not be construed in the manner which would prolong the industria ! adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, itshould consider the order of reference in a fair and reasonable manner , though the order of refcrence 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. 1 find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent / Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the scttlement.

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 heid that " the only question which falls for determination in this appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 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 itit 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 pane ! 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 inerit 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 inala fide motive . Under such circumstances , after the expiry of the date nainely 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 Einployinent 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 8165

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[भाग II- खण्ड 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/ E 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 Courtto prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employinent with open eyes. It may be true that he is not in a position to bargain --not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode of public appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the 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 5.3 stecis continuance , if the original appointnient was net saade by following a due process of selection as envisaged by relevant : ules." 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 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 ofthese employees whose entry itself was illegal and void isconcerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise, if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amountto decorating a still born baby . Under these circumstances, there was no occasionto regularise them orto 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 8166

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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 theGovt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

[PART 11-SEC . 3 ( ii) ] ofmala fide , misrepresentation, fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

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

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. Number Costs .

21. Thus , the reference is answered accordingly .

K. JAYARAMAN , Presiding Officer Witnesses Examined:-

For the Petitioner

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service . Further , when they have not been questioned the five 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 thercon 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 K. Easwaran WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariapparı 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 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 settlement and they have not alleged that settlement was not a bona fide in nature or it has been arrived at on account

Description

01-08-88 WI 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 implernentation of Ex .M1 ..

[ भाग II- खण्ड 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 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.

Nil

W8

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

W9 04-03-89 Xerox copy of the service certificate issued by Periyakulam Branch .

18-06-97

WI0

Xerox copy of the service certificate issued by Periyakulam 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 Vol . III of Reference book on Staff matters upto 31-12-95 .

06-03-97

W13

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

06-03-97

W14

Xerox copy ofthe call letter froin Madurai zonal office for interview ofmessenger 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. 26-03-97

WI7

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

31-03-97

W18

Xerox copy of the appointment order to SriG. Pandi .

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भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

Ex . No. Date

Description

Feb. 2005

W19

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

13-02-95

W20

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

09-11-92

W21

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

09-07-92

W22

Xerox copy of the minutes of Bipartite meeting.

09-07-92

W23

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

07-02-06

W24

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

31-12-85

W25

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

For theRespondent/Management :-

Ex . No. Date

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 9-01-91 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 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 ofthe order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99.

8168

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

[PART 11-SEC . 3 ( ii ) ] नई दिल्ली , 27 अगस्त, 2007

to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution of this - CGIT- cum- Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I.D. No. 163/2004.

का.आ. 2810.-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 163/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/526/1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Shri K. Navamani , wait list No. 258 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointinent thereupon as temporary messenger is justified? If so , to what relief the said workınan is entitled ? "

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

S.O. 2810. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 163 / 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 27-8-2007.

[No. L- 12012/ 526/ 1998-1R (B - I ) ] AJAY KUMAR , Desk Officer

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

Wednesday, the 31st January , 2007

PRESENT

Shri K. Jayaraman , Presiding Officer Industrial Dispute No. 163/2004

[Principal Labour Court CGID No. 225/99]

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

BETWEEN

Sri K. Navamani

: 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

: M/s . K.S. Sundar , Advocates

For the Management

AWARD

1. The Central Government, Ministry of Labour, vide OrderNo. L - 12012/ 526/98 - 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 thedispute on its file as CGID No. 225/99 and issued notices

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Pondicherry Main branch from 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 workinen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Pondicherry Main branch . He was called for an interview by a Committee appointed by Respondent /Bank in this regard. But , they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 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 Jipmer branch , another advertisement by the Respondent/ Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such, the Manager ofthe branch informed the Petitioner orally on 31-3-97 that his services are not required any more 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 2

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[भाग II-- खण्ड 3 (ii ) ]

thisTribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence, since according to the Respondent/ Bank, it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent /Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/ Bank has been regularising according to their whims and fancies . The Respondent/ Bank has also not ohserved the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent / Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent /Bank with all attendant benefits .

17-11-87, 16-07-88 , 07-10-88 , 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. 258 in waitlist of Zonal Office , Trichy. So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger. The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category; (B ) the temporary employees who have completed 270 days aggregate teinporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 258 , 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 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 ment of Petitioner was not authorised. The Petitioner is.estopped from making claiın as per Clairn Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3) of 1.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 8170

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[PART II-SEC. 3 (ii)]

Point No. 1 :

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/ Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/ Bank hurriedly entered into a settlement on the issue of absorption of temporary einployees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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

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

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

(i) "Whether the demand of the Petitioner in Wait List No. 258 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 ? "

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 1.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible tobe reinstated . Learned representative for the Petitioner 8171

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन7, 1929

[ भाग II-खण्ड 3 ( ii ) ]

Ex.M10 was prepared on 2-5-92 but there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement wasconcerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent arenot justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by 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 oftemporary employees in the matter of absorption . Therefore , it is violative ofArticles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait list is not 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 . Ml was not produced at the time of conciliation proceedings held during the year 1997-98 held atChennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners 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. contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.MI and the averments of MW1 and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A , B & C ' is quite opposed to the doctrine of ' last come-first go ' or ' first come-last go ' and therefore , the categorization in Clause I is illegal . Clause 1 ( a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave / casual vacancies of messengers , farashes , cash coolies , water boys, sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further, engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy 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.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . EvenMW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non - inclusion except his bald statement . Further , accordingto MWI wait list under

3855 G1 /2007-30 8172

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[PART II-SEC. 3 ( ii) ]

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25, and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act. It isfurther contended on behalf 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 daysduring 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 .

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 ofthe Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18 (3 ) settlement nor 12( 3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . M1 to M4 made in terms of Ex . M6 . Though the Respondent/ Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has 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

10. But , as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view of the facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the ID. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 8173 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

[भाग II- खण्ड 3 ( ii ) ]

the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable, or unfair in the terms ofthe settlement, it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC469 NATIONALENGINEERING 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 ofyet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list Number given for restoring the wait list of ternporary messengers in the establishment of Respondent /Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment inade 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 Governemnt 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 behaif of the Petitioner it is contended that mere wording of reference is not decisive inthe matter of tenability of a referenc and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTELAND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference , ifpoints 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 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 allworkmen ofthe establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations ofmala fides ,fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD. Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that "settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 (1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3) . A settlement of the first category has limited application andbinds merely parties to it and settlement ofthe second category made with a recognised majority union has extended application as it will be binding on all workmen ofthe establishment. Even in case ofthe first category, if 8174

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

[PART II -SEC. 3 ( ii ) ] 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 SAG NATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties. " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS, wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P.Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunai 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 andtherefore , 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. 1 find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

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 ofthe impending absorption of steam surplus staff and a policy decision has been taken to reduce the number of vacancies and consequently , a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that" in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that itwas ayearly panel expiring on 6-2-98 , we are ofthe opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry ofthe panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that" candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying 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 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 8175 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

at the time of his appointment ; ( d) his record of service 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 .

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 Courtto prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode of public appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confér 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 since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation ofan ad -hoc employee for one year, it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case, a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case, such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one . From this, the impugned directions must be held to be totally untenable and unsustainable. " Thus , the Supreme Court set aside the orders 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 , 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 confirining 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 , 8176

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

[PART II -SEC . 3 ( ii )]

other inducements . Under such circumstances, I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services 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.

LTD. AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , isnot a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " 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 upón him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore. "

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

Point No. 2 :

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

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

21. Thus , the reference is answered accordingly. K. JAYARAMAN , Presiding Officer

Witnesses Examined :-

For the Petitioner

WW1 Sri K. Navamani WW2 Sri V. S. Ekambaram 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation ofhis service . Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

For the Respondent MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :-

Ex . No. Date

Description

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

17.1 find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/ Bank and Federation, at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the 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 for implementation of Ex .M1 .

8177

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

[ भाग 11 - खण्ड 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 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.

Nil

W8

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

W9 01-09-88 Xerox copy of the service certificate issued by Pondicherry Branch .

12-07-89

W10

Xerox copy of the service certificate issued by Jipmer Branch .

W11 23-06-92 Xerox copy of the service certificate issued by Jipmer Branch .

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

W13 Nil

Xerox copy ofVol . III of Reference book on Staffmatters upto 31-12-95 .

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

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

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

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

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

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

Ex. No. Date

Description

W20 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthe 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 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 part time general attendants .

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

W26 31-12-85 Xerox copy of the local Head Office circular about Appointment of temporary employees in subordinate cadre.

For the Respondent/Management :-

Ex. No. Date

Description

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

M2

Xerox copy of the settlement .

16-07-88

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

M4 9-01-91 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 ofthe 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 .

8178

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

नई दिल्ली, 27 अगस्त , 2007

का.आ. 2811.-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 101/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था । [सं. एल -12012/305/1998 - आईआर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 27th August , 2007

S.O. 2811. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947), the Central Government hereby publishes the Award (Ref. No.101 / 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 -27-8-2007 .

[No. L- 12012/305/ 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. 101/2004 [Principal Labour Court CGID No.44/99 ] [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 E.Maruthamuthu

: 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

1. The Central Government Ministry ofLabour , vide Order No. L - 12012 /305/ 98 - IR (B - I) dated 02-02-1999 has referred this dispute earlier to the Tamil Nadu Principal

[PART II-SEC . 3 ( ii ) ] Labour Court , Chennai and the said Labour Court has taken thedispute on its file as CGID No.44/99 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. 101/2004 .

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

"Whether the demand of the workman Sri E.Maruthamuthu , wait list No. 446 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled?"

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

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Tiruchirapalli branch from 26-12-85. During 1985-86, the Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ PetitionNo. 542/87 which was taken up by the Supreme Court. The Respondent/Bank , in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable, the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Trichy branch .He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 26-12-1985 the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temprorary basis in Triuchirapalli branch , another advertisementby the Respondent/ Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 8179

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग 11 - खण्ड 3 (ii ) ]

1-4-97. Hence , the Petitioner raised a dispute with regard to his non- employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent /Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent /Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent /Bank before the conciliation officer . Therefore, the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the 1.D. Act. The termination of the Petitioner is against the provisions of para 522 (4) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

Federation which resulted in five settlements dated 17-11-87, 16-07-88 , 07-10-88,9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) of1.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 446 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 appointinent . 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 miniınum 70 days aggregate temporary service in any continuous block of 36 calendar inonths were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements, out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 446 , 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 . Itis 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 ofregular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of I.D. Act in lieu of provisions of law, retrenchment and implementedby Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was 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

3855 G1/ 2007-31 8180

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 /ASVINA 7 , 1929

[PART II-SEC . 3 ( ii ) ]

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

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

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

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

(0) "Whether the demand of the Petitioner in Wait List No. 446 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 ?"

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 8181

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[ भाग 11 - खण्ड 3 ( ii ) ]

Ex.M10 wasprepared 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 notjustified and combined the list ofcandidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment of MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MWI wait list under Ex.M10 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 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait list is not in conformity with the instructions of Ex.M2 and non -preparation of separate panels amounts to violation of circular. Secondly, it has not been prepared as per instructions in Ex .W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in ' The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex. M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex . MI was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo ) of the I.D. contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit ofthe workmen to whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex. M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.M1 and the averments of 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 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.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 . EvenMW 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 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 8182

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[ PART II- SEC . 3 (ii) ]

case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service ofthe 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 1.Ds. have not completed 240 days , since the Respondent/ Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent /Bank has conducted, the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub- staff in early 1980s but were denied further engagement on account of settlements / lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault 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 .

Act, 1947. Though the Petitioner's work in the Respondent/ Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employ workmen as' badlies ' , casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2(e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank. The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination of the . Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad, it is neither a 18 (3 ) settlement nor 12 (3 ) settlement as claimed by the Respondent/ Bank which says onlywith regard to modification of Ex. Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased 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 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 the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 8183

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[ भाग II-खण्ड 3 ( ii ) ]

the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also." He further relied on the rulings reported in AIR 2000 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 offraud, misrepresentation or concealment offacts 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 .

12. But, as against this on behalf ofthe Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that "mere wording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into 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 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 II workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment , even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law ofcontracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority union from scuttling the settlement . " It further held that " there may be exceptional cases , where there may be allegations ofmala fides, fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 К.С.Р. LTD. VS. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 ( 1) of the 1.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3) . A settlement of the first category has limited application andbinds merely parties to it and settlement ofthe second category made with a recognised majority union has extended application as it will be binding on all workmen ofthe establishment. Even in case of the first category, if 8184

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[PART II -SEC . 3 ( ii ) ] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the , Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT , MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner ." He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal 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 , itshould consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it frained to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

13. I find some force in the contention of the representative for the Petitioner. Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent /Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS Vs. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made inview ofthe impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments 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 ofthe opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry ofthe panel . The claim of the Respondents as contained in 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 on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad -hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; ( c) he was not eligible and qualified for the post 8185

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[ भाग II- खण्ड 3 ( ii) ]

at the time of his appointment ; (d) his record of service 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 employinent 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 ainong 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 since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of an ad - hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable. " Thus , the Supreme Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation ofthese employees whose entry itself was illegal and void isconcerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad -hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility . It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore, remained a nullity . " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claiın 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 circuinstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretchedto such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , 8186

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

LTD . AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court has held that " regularisation furthermore , isnot a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , inCDJ 2006 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 . "

[PART II-SEC. 3 (ii) ] ofmala fide , misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services ofthe Respondent /Bank .

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

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

Point No. 2:

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

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

21. Thus , the reference is answered accordingly . K. JAYARAMAN , Presiding Officer Witnesses Examined :-

For the Petitioner

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Further , when they have not been questioned the five 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 .

17.1 find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation , at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the 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

WW1 Sri E. Maruthamuthu WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :-

Ex. No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/ Bank for implementation ofEx. M1 .

[भाग II- खण्ड 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 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of massenger vacancies and filling them before 31-3-97.

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

W9 05-06-86 Xerox copy of the service certificate issued by Tirchy Branch

05-03-92

W10

Xerox copy of the service certificate issuedby Tirchy Branch

06-04-93

WII

Xerox copy of the service certificate issued by Tirchy Branch

05-04-94

W12

Xerox copy of the service certificate issued by Tirchy Branch

07-04-95

W13

Xerox copy of the service certificate issued by Tirchy Branch

14-11-97

W14

Xerox copy of the service certificate issued by Tirchy Branch

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

Nil

W16

Xerox copy ofVol . III of Reference book onStaaffmatters upto 31-12-95. 06-03-97

W17

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

06-03-97

W18

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

06-03-97

W19 .

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

3855 GI/2007-32

8187

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

Ex. No. Date

Description

17-03-97

W20

Xerox copy of the service particulars - J. Velmurugan.

26-03-97

W21

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

31-03-97

W22

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

Feb. 2005

W23

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

13-02-95

W24

Xerox copy of the Madurai Module circular letter about Engaging temporary employees fromthe panel ofwait list .

09-11-92

W25

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

09-07-92

W26

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

W27

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

07-02-06

W28

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

31-12-85

W29

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

For the Respondent/ Management :-

Ex . No. Date

Description

MI

Xerox copy of the settlement .

17-11-87

M2

Xerox copy of the settlement .

16-07-88

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

M4

Xerox copy of the settlement .

9-01-91

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 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 .

8188

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

[PART II- SEC . 3 ( ii) ] नई दिल्ली, 27 अगस्त, 2007

Court, Chennai and the said Labour Court has taken the dispute on its file as CGID No. 121/99 and issued notices to bothparties . 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 beentransferred to this Tribunal for adjudication and this Tribunal has numbered it as I.D. No. 130/2004.

का.आ. 2812,-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 130/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/ 281/1998- आईआर( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August, 2007

"Whether the demand of the workman Sri V. Kannan , wait list No. 510 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. 2812. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No.130/ 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 27-8-2007 .

[No. L- 12012/281 / 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. 130/2004

[Principal Labour Court CGID No. 121/99]

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

BETWEEN

Sri V.Kannan

: 1 Party/ Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative .

For the Management : M/s.V.Sundar Anandan , Advocates

AWARD

1. The Central Government Ministry of Labour, vide Order No. L- 12012 /281 / 98 - IR (B - I ) dated 09-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour

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 Tiruchirapalli Town branch from 08-05-85 . 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 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 , theRespondent/Bank brought to the notice ofthe Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Tiruchirapalli Town 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 08-05-1985 the Petitioner has been working as a temporary messenger and sometimes performing work in other branches also. While working on temprorary basis in Trichy Z.O. branch , another advertisement by the Respondent/ Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 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 8189

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 ( ii ) ]

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 repugnant to Sections 25G & 25H ofthe 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 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 .

17-11-87, 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3) ofI.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees, and the Petitioner was wait listed as candidate No. 510 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 31-3-97 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 510 , he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far andthe settlements of bank level settiements 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 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 ofengagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espousedby State Bank of India Staff Federation which resulted in five settlements dated 8190

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC. 3 ( ii ) ]

Point No. 1 :-

settlements , vacancies upto 31-12-94 were filled up against the waited list of temporary employees and vacancies for 1995-96 has to be filled up against the wait list drawn for appointment 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 in permanent vacancies in subordinate cadre on temporary basis.After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees Union had filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/ Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court atthe time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they 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 hasbeen arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence , the Petitioner praysays 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 ) ofthe Act and not under Section 18 (3 ) of the Act . As per recruitment rules ofthe Respondent/Bank, recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights 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. 510 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?"

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

8191

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

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 . 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 , copy of which is marked asEx. W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex. W2 four types of waiting lists have tobe prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW I is unable to say as to when the wait list Ex .M10 was prepared, butitis mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further, accordingto MWI wait list under Ex.M10 was prepared on 2-5-92 but

there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages asperBipartite Settlement while the 1988 settlement dealt with daily wager in class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further, the averment 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 after due process of selection and were paid wages on the basisof industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore, it is violative ofArticles 14 & 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 ofseparate panels amounts to violation of circular. Secondly, ithas not been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released/published even after the Court order in WMP No. 11932/91 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 itas a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (00) of the I.D. Act, 1947 .

[PART II-SEC . 3 ( ii) ] 8192

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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 1.Ds have not completed 240 days , since theRespondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 11 LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer' cannot mean that those days onlywhen the workmen worked with hammer, sickle or pen butmust necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements /lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault of theirs , they find themselves stranded in life midstream. They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour.

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the I.D. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim 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 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. 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 MWI . Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner (Central ), Hyderabad , it is neither a 18 (3 ) settlement nor 12 ( 3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . MI to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and MI I 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 of Respondent/Bank has no application to the Petitioner's 8193 [ भाग II- खण्ड 3 (ii ) ]

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settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentation or concealment offacts or even corruption and other inducements, it could be subject- matter ofyet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help 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 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 ofthe establishment , even those who belong to the minority union which had objected to the same . To that extent, it departs from the ordinary law ofcontracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement. " It further held that "there may be exceptional cases , where there may be allegations ofmala fides,fraud or even corruption or other inducements. But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 ( 1) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under section 18(3). A settlement of the first category has limited application and binds 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 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 , 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 8194

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[PART II-SEC . 3 (ii)] 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 ofthe Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V. VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose

name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy . " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly pänel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively ." He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him. Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad -hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad -hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post 8195

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[ भाग II- खण्ड 3 (ii) ]

their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following first go ' is not mandatory principle of ' last come but only directory , on sufficient grounds shows, 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 Courtto prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad- hoc employees who by the very nature of their appointment , do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware ofhis employment . He accepts the employment with open eyes. It may be true that he is not in a positionto bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme ofappointment, perpetuate illegalitics and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible. " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms ofthe relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS at the time of his appointment ; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover , from the mere continuation of an ad -hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of 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 11 SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation ofthese employees whose entry itself was illegal and void 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 contendedthat these temporary employees were appointed onlydue to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/ Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS VS. STATE OF BIHAR AND ORS. wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts ,

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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 service by that itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore ."

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

[PART II-SEC. 3( ii) ] ofmala fide, mišrepresentation , 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 casemust be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme Court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, I find the Petitioner is not entitled to claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore, I find this point against the Petitioner.

Point No. 2 :-

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

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

21. Thus, the reference is answered accordingly.

(Dicted to the P.A. , transcribed and typed by him, corrected and pronounced by me in the open court on this day the 31s1 January, 2007)

K. JAYARAMAN , Presiding Officer Witnesses Examined:-

Forthe Petitioner WW1 Sri V. Kannan WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :-

Ex. No. Date

17.1 find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement , the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation , at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the 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

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation ofEx. M1 .

[भाग II- खण्ड 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 Xerox copy of the circular of Respondent /Bank to all branches regarding identification of massenger vacancies and filling them before 31-3-97 .

W8 Nil

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

W9 02-08-88 Xerox copy of the service certificate issued by Tiruchirappalli Town Branch 12-08-91

WI0

Xerox copy of the service certificate issued by Tiruchirappalli Town Branch 31-10-92

WII

Xerox copy of the service certificate issued by Tirchy Town Branch .

W12 20-04-93 Xerox copy of the service certificate issued by Ramalinga Nagar Branch .

31-5-93

WI3

Xerox copy of the service certificate issued by Tiruchirappalli Branch.

W14 Nil

Xerox copy of the administrative guidelines in reference book on staff matters issued by respondebnt /bank regarding recruitment to subordinate cadre& service conditions.

W15 Nil Xerox copy of the Reference book on matters 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 .

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 .

8197

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

Ex. No. Date

Description

W20 26-03-97 Xerox copy of the letter advising selection of part time MenialG. Pandi .

W21 31-03-97 Xerox copy of the appointment order to SriG. Pandi .

W22 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February , 2005 wait list No. 395 ofMadurai Circle .

W23 13-02-95 Xerox copy of the Madurai Module circular letter about engaging temporary employees from the panel of wait list .

W24 09-11-92 Xerox copy of the Head office circular No. 28 regarding norms for sanction of messenger staff.

W25 09-07-92 Xerox copy of the minutes of 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 .

W27 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees and redesignate them as general attendants .

W28 31-12-85 Xerox copy of the local Head Office circular about appointment of temporary employees in subordinate cadre .

For the Respondent/Management:-

Ex. No. Date

Description

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

M2

Xerox copy of the settlement .

16-07-88

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 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 .

MI1 25-10-99 Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99 .

8198

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

[PART II-SEC . 3 ( ii) ] नई दिल्ली , 27 अगस्त, 2007

to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively . After the constitution of this CGITcum Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I.D. No. 171/2004 .

का.आ. 2813.-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 171/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/531/1998 - आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Shri N. Varadarajaperumal wait list No. 280 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. 2813.-In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 171 / 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 27-8-2007.

[No. L- 12012/ 531 / 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. 171/2004

[Principal Labour Court CGID No. 265/99]

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

BETWEEN

: I Party/Petitioner

Sri N. Varadarajaperumal

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram,

Authorised Representative.

: M/ s K. S. Sundar, Advocates

For the Management

AWARD

1. The Central Government , Ministry of Labour, vide OrderNo. L- 12012/531 / 98 - IR (B - I) dated 26-04-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No.265/99 and issued notices

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Pondicherry Main branch from September, 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 , theRespondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Pondicherry Main 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 wasinformed orally to join at the branch where he initially worked as a class IV employee . From September , 1982 the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Pondicherry 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 wasworking 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 8199

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii) ]

hisnon- employment. Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party tothe settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal. Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522 (4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

17-11-87, 16-07-88 , 07-10-88 , 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. 280 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 31-3-97 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 280 , 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 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 8200

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

[PART II-SEC. 3( ii)]

Point No. 1 :

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition. This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex. Ml . The Petitioner in this case and the Petitioners in the connected cases attacked this settlementas 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. Ir the additional claim statement, the Petitioner contended that he was having been sponsored by employment exchange and having undergone medical examination, the Petitioner has fulfilled the criteria set out by the Respondent/ Bank for selection of candidate for appointment in the post of messenger and other class IV post . He was engaged in the messenger post in the subordinate cadre of the Respondent/Bank continuously with deliberate and artificial breaks . Therefore , the Respondent/Bank is duty bound to regularise the services of the Petitioner as he has acquired the valuable right enshrined in the Constitution of India. In the year 1998 , the Respondent/Bank has issued a circular to the effect that under no circumstances , wait listed persons like the Petitioner be engaged even in menial category, thus , the Respondent/Bank imposed total ban for his future employment . Even though there were sufficient number of vacancies in class IV category , the Respondent/Bank deliberately delayed in filling up the vacancies by the wait listed workmen with ulterior motive . The Respondent/Bank has been arbitrarily filling up the vacancies with the persons other than wait listed workmen according to their whims and fancies .Hence , the Petitioner prays that an award may be passed in his favour .

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

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

(i) "Whether the demand of the Petitioner in Wait List No. 280 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 ? "

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 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 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 8201 [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र: सितम्बर 29, 2007/आश्विन 7, 1929

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V -A of the I.D. Act providing for retrenchment is not enacted only for the benefit of the workmen to whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of MW1 and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex . Ml deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A , B & C' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex . W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars/ instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals 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 ofwaiting lists have to be prepared . But the Respondent/ Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively. But , when MW1 has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to 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 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 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/Bankby combing equals with unequals . Itisfurther contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex.M10 comprises of both messengerial and non -messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different 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 ofIndia . Therefore, the Petitioner contended that preparation ofEx . M 10 namely wait list is not in conformity with the instructions of Ex.M2 and non - preparation of separate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994 . Furthermore, no wait list was released / published even after theCourt order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/ Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex. M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . 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 engaged in leave vacancy was used as a device to take them out of the principal clause 2 ( oo) of the 1.D. Act, 1947.

8202

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

[PART II-SEC . 3 ( ii )]

case . The Petitioners have completed the service of 240 daysand more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected 1.Ds have not completed 240 days, since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days onlywhen the workmen worked with hammer, sickle or pen butmust necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reportedto have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal. In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements /lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 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 employworkmen as 'badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex. M10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it. Though clause 2( e ) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case, a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support ofthe averment and also for the averment of MWI . Therefore , the termination ofthe Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though theRespondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad, it is neither a 18 (3 ) settlement nor 12 (3 ) settlement as claimed by the Respondent/ Bank which says only with regard to modification of Ex . M1 to M4 made in terms of Ex. M6 . Though the Respondent/ Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and itconstitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

10. But , as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view 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 implementedby 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 8203

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[ भाग II- खण्ड 3 ( ii) ]

settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terins of the settlement, it must be binding on the contesting workmen also . " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements , it could be subject - matter ofyet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be 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 inade 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 appointinent thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/ Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION VS. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that "merewording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference , if points of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to findout some technical defects in the wording ofreference, subjecting the poor workman to hardship involved in moving the machinery again . " It further held that "the was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger. 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 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 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

3855 G1 /2007-34 8204

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929

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

13. I find soine force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it 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 ofthe impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that 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 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 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 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 rneans 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 8205

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[ भाग II-खण्ड 3 (ii ) ]

their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come first go' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank. Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the. Petitioner and, therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even inrecent decision reported in 2006 4 SCC 1 SECRETARY , STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right . " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature isnot aware ofhis employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointinent 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 strong of such continuance, if the original appointinent 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 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 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 11 SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation of these employees whose 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 thein 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 einployees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the 1.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage einployees and have no right to the posts , 8206

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929

[PART II -SEC. 3 ( ii)]

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240 days of continuous service in a period of 12 calendar months and the Supreme Court has also held that each case must be considered on its own merit and the changes brought about by the subsequent decisions of the Supreme 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 , 1 find this point against the Petitioner.

LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise. " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " itis not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further, in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the 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.

(Dicted to the P.A. , transcribed and typed by him , corrected and pronouncedby 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 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.

For the Petitioner WWI SriN . Varadharajaperumal WW2 Sri V. S. Ekaınbaram

For the Respondent MWI Sri C. Mariappan MW2, Sri T.L. Selvaraj

Documents Marked :-

Ex.No. Date Description

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

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 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 8207

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[ भाग II- खण्ड 3 (ii ) ]

Description Ex. No. Date

W3 24-04-91 Xerox copy of the circular of Respondent /Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

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

W6 15-03-97 Xerox copy ofthe circular letter of Zonal Office , Chennai about filling up of vacancies of 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 instructions in Reference book on staff about casuals not to be engaged at office /branches to do messengerial work.

W9 14-03-83 Xerox copy of the service certificate issued by Pondicherry Branch .

03-05-84

W10

Xerox copy of the service certificate issued by Pondicherry Branch .

24-02-92

W11

Xerox copy of the service certificate issued by Pondicherry Siruthozhil Branch

04-06-98

W12

Xerox copy of the service certificate issued by Pondicherry Siruthozhil Branch

W13 Nil

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

W14 Nil Xerox copy ofVol . III ofReference book onStaffmatters upto 31-12-95 .

06-03-97

W15

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

06-03-97

W16

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

06-03-97

W17

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

17-03-97

W18

Xerox copy of the service particulars - J. Velmurugan.

Ex . No. Date

Description

26-03-97

W19

Xerox copy of the letter advising selection of part 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 month of February , 2005 wait list No. 395 ofMadurai Circle .

W22 13-02-95 Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel 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 of the minutes of 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 norins --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

Xerox copy of the settlement .

16-07-88

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

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

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

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

M10 Nil

Xerox copy of the wait list of 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 .

8208

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[PART II SEC . 3 (ii ) ] नई दिल्ली , 27 अगस्त , 2007

thedispute on its file as CGID No. 222/99 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. 160/2004 .

का.आ. 2814, 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 160/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/529/1998- आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Shri E.Mohan wait list No. 368 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. 2814. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No. 160/ 2004) of the Central Government Industrial Tribunal-Cum- Labour Court , Chennai as shown in the Annexure in the Industrial Dispute between the management of State Bank of India and their workmen , receivedby the Central Government on 27-8-2007 .

[No. L- 12012/ 529/ 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. 160/2004 [Principal Labour Court CGID No. 222/99 ]

[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 E. Mohan

: I Party/Petitioner

AND

TheAssistant General Manager , II Party/Management State Bank of India , Region - 1 Trichirapalli

APPEARANCE

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

For the Management : Mr. F.B. Benjamin George , Advocates

AWARD

1. The Central Government , Ministry of Labour, vide Order No. L- 12012/ 529 /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 sponsoredby Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Villupuraın Main branch from 27-01-1981 . The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition 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 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 Villupuran 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 27-1-1981 the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Villupuram 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 8209

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[भाग 11- खण्ड 3 (ii) ]

non-employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further, the settlements are repugnant to Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award. 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 ofcircular . 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 senjority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

17-11-87, 16-07-88 , 07-10-88 , 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. 368 in waitlist of Zonal Office, Trichy . So far 212 wait listed temporary candidates, out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement, employees were categorised as A, B, and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered. As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 368, 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 doesnot 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt. for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question of regular appointment/absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3) of 1.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bonafide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioneddown in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated 8210

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[PART II-SEC . 3 ( ii) ]

Point No. 1 :

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years, the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court toprotect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex. M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and 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 ) ofthe Act and not under Section 18 (3 ) of the Act . As per recruitment rules ofthe Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the Respondent/Bank. Even in the Writ Petition before the High Court in W.P. No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91. It is false to allege that the settlements are contrary to the rights 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. 368 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 ?"

9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employees in the Respondent/Bank under the guidelines and circulars issued by the Respondent/ Bank from time to time and further, the same guidelines carry the procedure for regularisation of service of the temporary employees and any settlement in this regard is redundant and in any case, the Petitioner is not bound by settlement under Section 18 ( 1 ) entered into between the alleged Federation and the Respondent/Management . They further contended that though the Respondent/Bank has stated that the Petitioner has not worked for more than 240 days in a continuous period of 12 calendar months and was not in continuous service on 17-11-1987, therefore , they have no valid and enforceable right for appointment, in the wake of strict instructions and circulars/guidelines issued by the Respondent/Bank to the effect that temporary employees at branches /offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V - A ofthe I.D.Act and it is preposterous to contend that the 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 8211

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[भाग II- खण्ड 3 (ii) ]

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 of Constitution of India . Further , the averment ofMW ! and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MWI wait list under Ex.M10 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 settlernent, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx. M 10 namely wait list is not in conformity withthe instructions of Ex.M2 and non -preparation ofseparate panels amounts to violation of circular . Secondly , it has not been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/ Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88. Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have thecredibility attached to the wait list . Above all , Ex. MI was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent /Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further, even before or after the settlement on absorption oftemporary employees , the expression that they were engaged in leave vacancy was used as device to take them out ofthe principal clause 2 (oo) of the 1.D. Act, 1947.

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the L.D. Act providing for retrenchment is not enacted obnly ofr the benefit ofthe workmentowhom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent / Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that 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 MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . MI deals with categorization ofretrenched temporary employees into 'A, B and C' , but this categorization of ' A , B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come-last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex.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 asEx. W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals weregiven more beneficial treatment in the matter ofarriving at qualifying service for interview and selection . But , temporary employees have not been inforined about this amendment which includes casuais affecting their interest and chance . Further , as per instructions in Ex . W2 four types ofwaiting lists have to be prepared . But the Respondent / Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex.M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively . But, when 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

3855 GI/2007-35 8212

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929

[PART II-SEC. 3 (ii) ]

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 DisputesAct , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act. It is further contended on behalf of the Petitioner that though some of the Petitioners inthe connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 11 LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days onlywhen the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements / lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault oftheirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour.

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 ofdepriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violationand in breach of it . Though clause 2( e) 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/Bankhas produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18( 3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says onlywith regard to modification of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any reievance 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 it constitutes post reference period and hence evidence Respondent/Bank has no application to the Petitioner's

10. But , as against this , the learned senior counsel for the Respondent/ Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence, the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18(3 ) of the 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 8213

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[ भाग II- खण्ड 3 ( ii ) ]

settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. "He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will of the parties and is a pointer to there being 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 offacts 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 .

was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect, they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and is binding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected . Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further, he relied on the rulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen ofthe establishment, even those who belong ta 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 onthe rulings reported in 1997 I LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that "settlements are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 ( 1) of the I.D. Act and (ii) those arrived at in the course of conciliationproceedings under section 18 (3) . A settlement 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 ail workmen of the establishment . Even in case of the first category, if the

12.But, as against this on behalf ofthe Petitioner it is contended that mere wording of reference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and we find sur yome technical dejects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again." It further hera mat the Tribunal should look into 8214

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

[PART II-SEC . 3 ( ii) ] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner ." He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, itshould consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference, it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

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 Pctitioner 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 heid 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 SCC584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that" by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion oftheir names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIAwherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question thewait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date nainely 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 8215 [ भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

their disengagement is not arbitrary ." He further relied on the rulings reported in 1994 3 LLJ ( Supp) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D. Act retrenchment procedure following principle of ' last come first go' is not mandatory but only directory , on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how , if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs.

atthe time of his appointment ; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad - hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . Thus , the Supreme Court set aside the orders oflower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS Vs. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation ofappointment in excess of sanctioned posts . "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad-hoc basis against an available vacancy which is already sanctioned . But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation isgiven, it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity . " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/ Bank. Further, he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts ,

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC I SECRETARY , STATE OF KARNATAKA VS. UMA DEVI , the Supreme Courthas held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules. It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right. " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible. " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS 8216

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 /ASVINA 7 , 1929

[PART II -SEC. 3 ( ii) ]

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

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

LTD . AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court has held that " regularisation furthermore, isnot a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "itis not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the 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 . K. JAYARAMAN , Presiding Officer

Witnesses Examined:-

For the Petitioner

WWI Sri E. Mohan WW2 Sri V. S. Ekambaram 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation ofhis service. Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either thepreparation ofwait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner .

For the Respondent MWI Sri C. Mariappan

MW2 Sri 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. MI .

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 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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx. M1.

[भाग II-खण्ड 3 (ii ) ]

8217

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन7, 1929

Ex. No. Date

Description W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4 .

W5 20-08-91 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 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 instructions in Reference book on staff about casuals not to be engaged at office /branches to do messengerial work.

W9 16-03-82 Xerox copy of the service certificate issued by Villupuram Branch .

W10 01-12-83 Xerox copy of the service certificate issued by Villupuram Branch .

W11 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by Respondent/Bank regarding recruitment to subordinate cadre & service conditions .

W12 Nil Xerox copy ofVol . 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 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 .

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

W17 26-03-97 Xerox copy of the letter advising selection ofparttime Menial-G . Pandi .

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

Ex .No. Date

Description

W19 Feb. 2005 Xerox copy of the pay slip of T. Sekar forthemonth 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. 09-11-92

W21

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

09-07-92

W22

Xerox-copy of the minutes of Bipartite meeting.

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 oftemporary employees in subordinate cadre .

For the Respondent/Management :-

Ex. No. Date

Description

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

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

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

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

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

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

M10 Nil

Xerox copy of the wait list of Trichy Module.

25-10-99

M11

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

8218

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

नई दिल्ली , 27 अगस्त, 2007

the dispute on its file as CGID No.97/99 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. 108/2004 .

का.आ. 2815. 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 108/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/391/1998 - आईआर( बी -1 ) ]

अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Sri K.Mohan , wait list No. 381 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. 2815. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No.108 / 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 27-8-2007 .

[No. L - 12012/391 / 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. 108/2004

[Principal Labour Court CGID No.97/99]

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

BETWEEN

Sri K.Mohan

: 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 .

: M/s.V.Sundar Anandan ,

For the Management

Advocates

:

AWARD

The Central Government, Ministry of Labour vide Order No. L- 12012/ 391 / 98 - IR (B - I) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Villupuram Main branch from October, 1982. The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filedby State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/Bank , in addition to its counter, filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , 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 Villupuram Main 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 October , 1982 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temprorary basis in Villupuram Main branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence , the Petitioner raised a dispute with regard to 8219

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[भाग II- खण्ड 3 ( ii) ]

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 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 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 .

17-11-87 , 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) of I.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No.381 in waitlist of Zonal Office , Trichy. So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment. Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category; (B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment , The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listedat 381 , 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised. The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of 1.D. Act in lieu ofprovisions of law, retrenchment and implementedby Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated

3855 GI/ 2007-36 [PART II-SEC. 3 ( ii) ] 8220

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Point No. 1 :

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

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

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

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

(1) "Whether the demand of the Petitioner in Wait List No. 381 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 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 (ii) " To what relief the Petitioner is entitled ? " 8221

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[भाग II- खण्ड 3 ( ii ) ]

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 by the Respondent/Bank by combing equals with unequals. It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is not inconformity with the instructions ofEx.M2 and non - preparation ofseparate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released / published even after theCourt order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 haid 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 1.D. Act, 1947..

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly of the benefit ofthe workmen to whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen . Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute /relate to the circular instructions of the Respondent/Bank issued from timeto time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of MWI and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex . Ml deals with categorization ofretrenched temporary employees into 'A, B and C' , but this categorization of ' A , B & 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 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 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, butit is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MW1 wait list under Ex.M10 was prepared on 2-5-92 but [PART II-SEC . 3 (ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

8222

case. The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service ofthe Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression ' actually worked under the employer' cannot mean that those days onlywhen the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement onaccount of settlements / lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault oftheirs, they find themselves stranded in life midstream. They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour.

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of 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 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 urider 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 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 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 of Respondent/Bank has no application to the Petitioner's 8223

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[भाग II- खण्ड 3 ( ii ) ]

settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that "settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject- matter ofyet another industrial dispute which an appropriate Govt. may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner. Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the

same.

11. Learned counsel for the Respondent further contended that though the reference made in this case and other connected disputes is ' whether the demand of the workman with wait list No. given for restoring the wait list of temporary messengers in the establishment of Respondent /Bank and consequential appointment thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Govt . is not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement.

12. But, as against this on behalf ofthe Petitioner it is contended that mere wording of reference is not decisive inthe matter 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 ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference , ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held that "the Tribunal should look into was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were bonafide which were the only workable solution and isbinding on the Petitioner . The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected . Furthermore, the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country . Further, he relied on the rulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD. Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen ofthe establishment , even those who belong to the minority union which had objected to the same . To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority 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 onthe rulings reported in 19971 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 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 8224

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[PART II-SEC . 3 ( ii) ] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference, but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER , LABOUR COURT , MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attemptto consider the order under reference in a technical manner or apedantic manner , but should consider the order ofreference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings 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 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 andthe fact that it was a yearly panel expiring on 6-2-98, we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said 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 sponsoredby 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 8225

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन7, 1929

[भाग II- खण्ड 3 ( ii ) ]

their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ (Supp ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come- first go ' is not mandatory but only directory, on sufficient grounds shown, the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case , the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how , if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner. In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even 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 ofappointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible." Further, the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms 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 atthe time of his appointment ; (d ) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad -hoc employee for one year , it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case, such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but a judicious one . From this, the impugned directions must be held to be totally untenable and unsustainable. Thus , the Supreme Court set aside the orders oflower Courts . He further relied on the decision reported in 1997 II SCC I ASHWANI KUMAR AND OTHERS Vs. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts. "So far as the question of confirmation of these employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad-hoc basis against an available vacancy which is already sanctioned . But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non- existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them 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 , [PART II-SEC . 3 ( ii ) ] 8226

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

19. But, I find since the Supreme Court has held that temporary employees are not entitled to claim any rights for regularisation , merely because they have completed 240 days 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 entitledto claim regularisation or reinstatement in the Respondent/Bank as alleged by him . Therefore , I find this point against the Petitioner .

LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "it is not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

Point No. 2 :

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

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

21. Thus , the reference is answered accordingly .

K. JAYARAMAN, Presiding Officer

Witnesses Examined : --

For the Petitioner WWI Sri K. Mohan 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 MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj

Documents Marked :---

Ex. No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx. MI .

17. 1 find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement , the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent /Bank and Federation , at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the 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 8227 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii ) ]

Description

Ex. No. Date

Description

Ex. No. Date

Feb. 2005

W20

W3 24-04-91

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

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

13-02-95

W21

W4 01-05-91

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

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

W5 20-08-91

09-11-92

W22

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

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

W6 15-03-97

09-07-92

W23

Xerox copy of the minutes of Bipartite meeting .

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

09-07-92

W24

W7

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 .

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.

W25 07-02-06

Nil

W8

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

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

31-12-85

W9

W26

09-04-83 Xerox copy of the service certificate issued by Villupuram branch.

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

21-12-89

W10

Xerox copy of the service certificate issued by Madras Z.O. branch.

For the Respondent/Management :-

1982-96

W11

Xerox copy of the statement showing number of days worked by petitioner .

Description

Ex. No. Date

W12 Nil

M1

Xerox copy of the settlement.

17-11-87

M2

Xerox copy of the settlement .

16-07-88

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

M3

Xerox copy of the settlement .

27-10-88

W13 Nil

Xerox copy of the settlement .

9-01-91

M4

Xerox copy ofVol . III of Reference book on staffmatters upto 31-12-95 .

Xerox copy of the settlement .

M5 30-07-96

06-03-97

W14

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

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

M7 28-05-91

06-03-97

W15

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

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

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

06-03-97

W16

M9 10-07-99

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

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

17-03-97

W17

M10 Nil

Xerox copy of the service particulars J.Velmurugan.

Xerox copy of the wait list of Trichy Module.

26-03-97

W18

M11 25-10-99

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

31-03-97

W19

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

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

3855 G1/2007-37 [PART II- SEC . 3 (ii) ] 8228

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

नई दिल्ली , 27 अगस्त, 2007

Labour Court, Chennai and the said Labour Court has taken thedispute on its file as CGID No.95 / 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. 107/2004 .

का.आ. 2816 , 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 107/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/390/ 1998- आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Sri R.Kumar , wait list No. 352 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. 2816. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No.107/ 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 27-8-2007 .

[No. L- 12012/390/ 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. 107/2004

[Principal Labour Court CGID No. 95/99 ]

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

BETWEEN

Sri R. Kumar

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sai V. S. Ekambaram , Authorised Representative .

For the Management : M/ s . V. Sundar Anandan , Advocates

AWARD

1. The Central Government, Ministry of Labour vide Order No. L - 12012/390/ 98 - IR ( B - 1 ) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Principal

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Villupuram Main 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 Villupuram Main 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 November , 1982 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temprorary basis in Villupuram Main branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such, the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 8229

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 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 due course. The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence, since accordingto the Respondent / Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination 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 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 .

Federation which resulted in five settlements dated 17-11-87 , 16-07-88 , 07-10-88,9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) of I.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 352 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 ernployees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement, employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates, 212 temporary employees were appointed ard since the Petitioner was wait listed at 352 , 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 liab to be rejected . Further, the said settlements were not questioned by any union so far andthe settlements of bank level settlements and operated throughout the country. The Tamil Nadu Industrial Establishment (Conferment of Permanent Statusto 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 [PART II- SEC . 3 (ii) ] 8230

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929

Point No. 1 :

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

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines /circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis .After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/ Bank terminated several temporary employees in the year 1985, the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 ( Civil ) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an 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 theAct and not under Section 18 (3 ) of the Act . As per recruitment rules of the Respondent/Bank , recruitment of class IV staff in the Respondent/Bank is in accordance with the instructions laid down under codified circulars of the 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. 352 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 atbranches /offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V - A of the 1.D. Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated . Learned representative for the Petitioner (ii) "To what relief the Petitioner is entitled ? " 8231

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there is no pleading in the Counter Statement with regard tothis wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P. No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances, asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt 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 of both messengerial and non -messengerial candidates . Whilethe temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore, both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case oftemporary employees in the matter of absorption. Therefore, it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contendedthat preparation of Ex . M 10 namely wait list is not iconformity 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 theCourt order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/Bank to release the list of successful candidates pursuant to the first advertisement published in The Hindu dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by themto 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 producedthe wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out ofthe principal clause 2 (oo) of the I.D. Act , 1947 .

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA Vs. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit 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 behalf of the Petitioner that Ex. W2 , W3 and W8 as well as Ex. M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.MI and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . Mi deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come- first go ' or ' first come- last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex . M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies of messengers , farashes , cash coolies, water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex. W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank'scirculars/ instructions . In such circumstances, the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by theRespondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals weregiven more beneficial treatment in the matter of arriving atqualifying service for interview and selection . But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex. W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one 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 , butitismentioned 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 8232

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case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that "the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further, argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal.In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault oftheirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

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 onlywith regard to modification of Ex. Ml to M4 made in terms ofEx . M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased - to have any relevance when the main writhas 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 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 ofhis engagement and could not be absorbed as he 8233

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[भाग II- खण्ड 3 ( ii ) ]

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 ofyet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them, they have entered into settlement with the bank and therefore , it is binding on the Petitioner. Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

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

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 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 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 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 I I workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea hefore the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen ofthe establishment , even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law of contracts, the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement . " It further held that " there may be exceptional cases , where there may be allegations ofmala fides, fraud or even corruption or other inducements. But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 I LLJ 308 К.С.Р. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 ( 1) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application 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 [PART II-SEC . 3 (ii )] 8234

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the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the 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 ofreference , but that does not mean that it cannot look into the pleadings ofparties . " He also relied on the rulings reported in 1998 LAB 1C 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, itshould consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it frarned 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. 1 find some force in the contention of the representative for the Petitioner . Therefore , 1 find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it isnot questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy . " In that case , pruning of select list on reduction in number of vacancies was made in view ofthe impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number of bottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that" in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with . which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the 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 1C 2168 STATE OF HARYANA AND ORS . Vs. PIARASINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad - hoc / temporary employee who has been continued for one year should be regularised even though ( a ) no vacancy is available for him which means creation of a vacancy ; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post 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 8235

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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 permanentby the Respondent/Bank. Any how, if the Petitioner has shown anything , the Respondent /Bank is readyto establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right. " Further , it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain- not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But onthat ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode of public appointment which is not permissible." Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength ofsuch continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules ." Further, in CDJ 2006 SC 443 NATIONAL FERTILIZERS at the time of his appointment ; (d ) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale, unconditional orders . Moreover, from the mere continuation of an ad -hoc employee for one year, it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further, there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The reliefmust be moulded in each case having regard to all the relevant facts and 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 uńsustainable " . 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 entrytry 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 contendedthat these temporary employees were appointed onlydue to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore, they are not entitled to claim any absorption in the Respondent/Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under 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

3855 GI /2007-38 8236

[PART II-SEC . 3 (ii ) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

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

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

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 herein- before."

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

Point No. 2 :

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

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

21. Thus , the reference is answered accordingly.

K. JAYARAMAN , Presiding Officer

Witnesses Examined :-

For the Petitioner WWI Sri R. Kumar WW2 Sri V. S. E kambaram 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation ofhis service. Further , when they have not been questioned the five settlements entered into between the Respondent /Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so. Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

For the Respondent MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :-

Ex . No. Date

Description

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

17. 1 find much force in the contention of the learned counsel for the Respondent. Though in the Claim Statement , the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent /Bank and Federation, at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the wait list. Further , the Petitioners have not questioned the settlement and they have not alleged that settlement was

W2 20-04-88 Хегox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 .

[भाग II- खण्ड 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 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 do messengerial work .

W9 17-03-83 Xerox copy of the service certificate issued by Villupuram branch .

W10 15-11-84 Xerox copy of the service certificate issued by Villupuram branch .

25-02-85

W11

Xerox copy of the internal letter of absorpation

W12 Nil

Xerox copy of the administrative guidelines in reference book on staff matters issued by respondent/bank regarding recruitment to subordinate cadre& service conditions .

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

W14 06-03-97 Xerox copy of the call letter from Maduri 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 ofthe service particulars- J. Velmurugan .

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

31-03-97

W19

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

8237

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

Ex.No. Date

Description

Feb. 2005

W20

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

W21 13-02-95 Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

W22 09-11-92 Xerox copy of the Head office circular No. 28 regarding Norms for sanction of messenger staff.

W23 09-07-92 Xerox copy ofthe minutes ofthe Bipartite meeting.

09-07-92

W24

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 .

31-12-85

W26

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

Xerox copy of the settlement .

16-07-88

27-10-88 Xerox copy of the settlement.

M3

M4

Xerox copy of the settlement .

9-01-91

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 ofHigh Court of Orissa .

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

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

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

8238

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929

नई दिल्ली, 27 अगस्त, 2007

the dispute on its file as CGID No.94/99 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. 106/2004 .

का.आ. 2817. 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 106/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/389/1998 - आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

" Whether the demand of the workman Shri C. Sridharan , wait list No. 476 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. 2817. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 106/ 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 27-8-2007.

[No. L- 12012/ 389/ 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. 106/2004

[Principal Labour Court CGID No. 94/99 ]

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

BETWEEN

Sri C. Sridharan

: 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 Anadan , Advocates

AWARD

1. The Central Government Ministry of Labour , vide Order No. L- 12012/389 / 98 - IR ( B - I ) dated 05-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Kaludur branch from 27-12-1984 . 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 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 Kaludur 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 27-12-84 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . Whileworking on temporary basis in Neyveli bazar 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 8239

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन7, 1929

[भाग II-खण्ड 3 (ii) ]

his non-employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number ofdays worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal. Further, the settlements are repugnant to Sections 25G & 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 to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

17-11-87 , 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) ofl.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. 476 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 wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 476 , 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 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 Claiın Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of I.D. Act in lieu ofprovisions 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 8240

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC . 3 ( ii) ]

Point No. 1 :

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985, the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 (Civil) of 1987 , the Respondent/ Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . 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 andfancies .Hence, the Petitioner prays that an award may be passed in his favour.

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

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

(i) "Whether the demand of the Petitioner in Wait List No. 476 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 ? "

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 haveinvoked the relevant provisions of Chapter V -A of the 1.D.Act and it is preposterous to contend that the Petitioner has no valid and enforceable right for appointment as Sections 25G and 25H are very much applicable to the Petitioners who are retrenched messengers and are eligible to be reinstated . Learned representative for the Petitioner 8241 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii ) ]

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr 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 onbehalfofthe Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further, a combined study of Ex.M1 and the averments of MW1 and MW2 and their testimonies during the cross- examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . MI deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A , B & C' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave / casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy ofwhich is marked as Ex . W8 . Further , the appointment 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 . EvenMW 1 is unable to say as to when the wait list Ex.M10 was prepared , but it is mentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively . But , when MW1 has spoken about the settlements , he deposed 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 arenotjustified and combined the list ofcandidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex.M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both 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 atChennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further, even before or after the settlement onabsorption oftemporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo ) of the 8242

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[PART II-SEC . 3 (ii)]

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of 1.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds. have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub- staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and inore 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 inidstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

I.D. Act , 1947. Though the Petitioner's work in the Respondent/Bank is continuous arrd 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 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 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 it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

10. But , as against this , the leamed senior counsel for the Respondent/ Bank contended that the reference inade by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18( 1 ) and 18 (3 ) of the ID. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not bona fide and are made with ulterior motive . Further, they have concealed the material facts that the Petitioner was wait listed as per length of his engagement and could not be absorbed as he 8243 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 ( ii) ]

settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by thefree will ofthe parties and is a pointer to there being goodwill between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account offraud, misrepresentation or concealment offacts or even corruption and other inducements , it could be subject- matter ofyet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable . " Relying on all these decisions , learned counsel for the Respondent contended that though itis alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further , he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on thein 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 mesmessenger is justified ? 'd? ' 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 behalfofthe Petitioner it is contended that mere wording of reference 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 KeralaHigh Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into 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 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 "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 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

3855 GI /2007-39 8244

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[PART II- SEC . 3 ( ii ) ] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order of reference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenchedfrom the Respondent/ Bank and therefore , this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore the argurnent advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. 1.find some force in the contention of the representative for the Petitioner . Therefore , i find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it is not questioned by any of the unions of the Respondent Bank, 1 find the Petitioner is not entitled to question the settlement.

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 deterinination 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 ofthe 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 6SCC 584 SYNDICATE BANK & ORS. Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion 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 a back door; ( c) he was not eligible and qualified for the post 8245

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग 11 - खण्ड 3 ( ii ) ]

their disengagement is not arbitrary. " He further relied on the rulings reported in 1994 3 LLJ ( Supp. ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of last come first go' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank . Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and , therefore , the claim is to be dismissed with costs .

:

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC | SECRETARY , STATE OF KARNATAKA Vs. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent 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 , nor 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 apen 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 wi !! de creating another mode ofpublic appointment which is et permissible. " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointmer 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 clatined 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 absorhed in regular service or made permanent merely on the strength of such continuance , if the original appointinent was not made by following a due process of selection as envisaged by relevant rules . " Further, 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 employces who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held thatin each and every case , such a dircetion 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 cannotbe a mechanical act but a judicious one . From this , the impugned directions must be held to he totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of Lower Courts . He further relied on the decision reported in 1997 11 SCC | ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts , " So far as the question of confirmation ofthese employees whose entry itself was illegal and void is concerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned. But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed onlydue to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent / Bank. Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OF BIHAR AND ORS. wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the 1.D. Act . The concept of retrenchmem therefore , cannot be stretchedto such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , 8246

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LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry of purported period of probation would not arise ." Further , in CDJ 2006 SC395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " itis not disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 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 aboutby the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Government in the wake of prevailing market economy, globalisation , privatisation and outsourcing is evident, in view of the settled legal position , as noticed hereinbefore ."

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

17. I find much force in the contention 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 of reference , they have not questioned the settleinent 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

[PART II--SEC. 3 ( ii) ] ofmala fide , misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services ofthe Respondent /Bank.

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

Point No. 2 :

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

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

21. Thus , the reference is answered accordingly . K. JAYARAMAN, Presiding Officer Witnesses Examined :-

For the Petitioner WW1 Sri C. Sridharan WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :-

Ex. No. Date Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . MI .

[भाग II- खण्ड 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 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of inessenger 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 do messengerial work.

W9 23-08-88 Xerox copy of the service certificate issued by Kaludur Branch .

W10 25-07-98 Xerox copy of the service certificate issued by Neyveli Bazar Branch .

WII Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by respondebnt /bank regarding recruitment to subordinate cadre & service conditions .

W12 Nil Xerox copy of Vol . Ill of Reference book on Staffmatters upto 31-12-95. 06-03-97

W13

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

06-03-97

W14

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

06-03-97

W15

Xerox copy ofthe call letter from Maduri zonal office for interview of messenger post-J . Velmurugan. 17-03-97

W16

Xerox copy of the service particulars J. Velmurugan.

W17 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G . Pandi .

31-03-97

W18

Xerox copy of the appointment order to SriG. Pandi .

8247

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

Ex. No. Date

Description

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 .

09-11-92

W21

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

W22 09-07-92 Xerox copy of the minutes of Bipartite meeting.

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.

For the Respondent/Management :-

Ex . No. Date

Description

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

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

M3

Xerox copy of the settlement .

27-10-88

M4 9-01-91 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 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 and 16290/99 in W.A. No. 1893/99 .

8248

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 ASVINA 7 , 1929

[PART 11 --- SEC. 3 ( ii) ] नई दिल्ली , 27 अगस्त, 2007

the dispute on its file as CGID No.110/99 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 Tribunai for adjudication and this Tribunal has numbered it as I.D. No. 106/2004.

का.आ. 2818.--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 कंन्द्रीय सरकार औद्योगिक अधिकरण , चेन्नई के पंचाट ( संदर्भ संख्या 120: 2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/399/1998- आईआर( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman. Shri D. Venunathan , wait list No. 242 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary mèssenger 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. 2818. -In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ), the Central Government hereby publishes the Award (Ref. No. 120/ 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 27-8-2007.

[No. L - 12012/399 / 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. 120/2004

[Principal Labour Court CGID No. i 10/99 ]

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

BETWEEN

Sri D. Venunathan

: I Party/Petitioner

AND

TheAssistant General Manager , II Party/ Management State Bank of India, Region - 1 Trichirapalli

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram , Authorised Representative .

For the Management : Mr.F.E.Benjamin George, Advocate

AWARD

1. The Central Government Ministry of Labour , vide Order No. L - 12012/ 399 / 98 - IR (B - 1 ) dated 08-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

The 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 Murkkeri branch from 19-10-1985 . The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank , in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between-management of State Bank of India and All India State Bank of India Staff Federation and the settlernent is with regard to absorption ofClass IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable, the Respondent Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed fonnat through Branch Manager ofthe Murkkeri branch . He was called for an interviewby a Committee appointed by Respondent Bank in this regard . But , they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally tojoin at the branch where he initially worked as a class IV employee . From 19-10-85 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on teinporary basis in Murkkeri 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 8249

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3( ii) ]

dispute with regard to his non-employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/Bankto continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/ Bank took up an unreasonable stand that the service and the number ofdays worked by Petitioner were treated as of no consequence, since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration. The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal. Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522 (4) of Sastry Award . Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave , medical benefits ete . 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 .

Federation which resulted in five settlements dated 17-11-87 , 16-07-88,07-10-88,9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 ( J ) of1.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 242 in waitlist of Zonal Office , Trichy . So far 212 wait listed temporary candidates , out of652 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement, employees were categorised as A , B , and C. Considering their temporary service and subject to other eligibility criteria , under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temperary employces who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimuın 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94. The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available. The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 242 , he was not appointed. The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Statusto Workmen) Act, 1981 does not applyto Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea . It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was 4. As against this , the Resporident in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable. The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlement drawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of I.D. Act in lieu ofprovisions of law, retrenchment and implemented by Respondent/ Bank. The claim of the Petitioner is not bonafide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those einployees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff 8250

[PART II-SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 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 in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines / circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary' basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/ Bank terminated several temporary employees in the year 1985, the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it be fore 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 classV 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 workınen 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 :-

(0) "Whether the demand of the Petitioner in Wait List No. 242 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 ? "

9. On behalf of the Petitioner, it is contended that these Petitioners were recruited as temporary employces 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 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 at branches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further , they have invoked the relevant provisions of Chapter V- A ofthe I.D. Act and it is preposterous to contend that the 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 8251 [ भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wagės as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex.M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption. Therefore , it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is not in conformity with the instructions of Ex . M2 and non - preparation of separate panels amounts to violation of circular . Secondly, it has not beenprepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994 . Furthermore , no wait list was released/published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent /Bank to release the list of successful candidates pursuant to the first advertisement published in ' The Hindu ' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . MI was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent /Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document .It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo ) of the I.D. Act, 1947 .

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent / Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that on behalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent / Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . Ml and the averments of MWI and MW2 and their testimonies during the cross-examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave / casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy 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 whowere engaged by the Respondent /Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex . W2 four types ofwaiting lists have to be prepared . But the Respondent/ Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex . M10 was prepared, butit 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

3855 GI /2007-40 [PART II-SEC . 3 (ii) ] 8252

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds. have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further, argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault oftheirs , they find themselves stranded in life midstream. They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

10. But , as against this , the learned senior counsel for the Respondent /Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 ( 3 ) of the 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 ofhis engagement and could not be absorbed as he Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of 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 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 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 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 8253

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii ) ]

the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 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 Governinent 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 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 LAE IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAI . , KOLLAM wherein the Kerala High Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints 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 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 1LLJ 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 11 LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen 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 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 arrivedat 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 application as it will be binding on all workmen ofthe establishment. Even in case ofthe first category, if 8254

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 1929

[PART II-SEC . 3 ( ii) ] 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 inservice 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 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, itshould consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank , I find the Petitioner is not entitled to question the settlement.

:

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy . In that case , pruning 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 of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that theRespondents did not get any right because of inclusion oftheir names in the said panel for permanent absorption in the services of the bank. Whatever conditional right theyhad come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore, the learned Single Judge and the Division Bench, when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further , he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now 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 8255

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7, 1929

[भाग 11 - खण्ड 3 ( ii) ]

their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp . ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come - first go' is not mandatory but only directory , on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent/Bank. Any how, if the Petitioner has shown anything , the Respondent/Bank is ready to establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent /Bank cannot be given to the Petitioner and , therefore, the claim is to be dismissed with costs .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC I 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 isnot aware ofhis employment . He accepts the employment withopen eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible. " Further , the Supreme Court while laying down the law, has clearly held that " unless the 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 atthe time of his appointment ; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad - hoc employee for one year, it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because 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 exercisc 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 , 8256

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

LTD . AND OTHERS Vs. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , isnot a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR , the Supreme Court has held that " 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 purposeose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

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

17. I find much force in the contention of the learned counsel for the Respondent. Though in the Claim Statement , the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/ Bank and Federation , at the time 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

[PART II- SEC . 3 (ii)] ofmala fide , misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the . Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent/Bank .

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

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

Point No. 2 :

The next 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 couert on this day the 31st January , 2007.)

K. JAYARAMAN, Presiding Officer Witnesses Examined :-

For the Petitioner WWI Sri D. Venunathan WW2 Sri V. S. Ekambaram For the Respondent MW1 Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :-

Ex. No. Date

Description

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

[ भाग II- खण्ड 3 ( ii) ]

8257

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

Ex .No. Date

Description

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 ofthe advertisement in The Hindu extending period of qualifying service to daily wagers .

W6 15-03-97 Xerox copy of the circular letter of Zonal Office , Chennai about filling up of vacancies of messenger posts .

W7 25-03-97 Xerox copy of the circular of Respondent / Bank to all Branches regarding identification of 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 8-01-87 Xerox copy of the service certificate issued by Murukkeri Branch .

16-11-87

W10

Xerox copy of the service certificate issued by Murukkeri Branch .

W11 Nil Xerox copy of the administrative guidelines in reference book on staff matters issued by respondent/bank regarding recruitment to subordinate cadre& service conditions .

W12 Nil Xerox copy ofVol. III of Reference book onStaffmatters upto 31-12-95 .

06-03-97

W13

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

06-03-97

W14

Xerox copy ofthe 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.

26-03-97

W17

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

Ex. No. Date

Description

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

Feb. 2005

W19

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

13-02-95

W20

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel ofwait list. 09-11-92

W21

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

09-07-92

W22

Xerox copy of the minutes of Bipartite meeting.

09-07-92

W23

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

07-02-06

W24

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

31-12-85

W25

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

For the Respondent/Management :-

Ex.No. Date

Description

Xerox copy of the settlement .

M117-11-87

Xerox copy of the settlement .

M2 16-07-88

M3

Xerox copy of the settlement .

27-10-88

M4

Xerox copy of the settlement .

9-01-91

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

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

25-10-99

M11

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

8258

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[PART II-SEC . 3 (ii ) ] नई दिल्ली , 27 अगस्त, 2007

thedispute on its file as CGID No. 109/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively. After the constitution of this- CGIT- cum- Labour Court, the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as 1.D. No. 119/2004 .

का.आ. 2819. 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 119/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/392/1998- आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Sri G. Jagadesan , wait list No. 330 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 Claiın Statement are briefly as follows :

S.O. 2819.In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No119/ 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 27-8-2007 .

[No. L- 12012/392/ 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. 119/2004

[Principal Labour Court CGID No. 109/99 ]

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

BETWEEN

Sri G.Jagadesan

: I Party/ Petitioner

AND

The Assistant General Manager,: 11 Party/ Management State Bank of India , Region - I Trichirapalli.

APPEARANCES

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

For the Management : MM/ s. V.Sundar Anandan , 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 H.E. Kailasapuram branch from 11-4-1985 . The Petitioner was orally informed that his services were no more required . The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption 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 11-4-1985 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temprorary basis in H.E. 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 on 31-3-97 that his services are not The Central Government, Ministry of Labour vide Order No. L - 12012/ 392/ 98-1R ( B - 1) dated 8-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

required any more and he need not attend the office from 8259 [ भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 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 Govt. to consider 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 mentionedby 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 ofthe 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 ofpetty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

Federation which resulted in five settlements dated 17-11-87, 16-7-88 , 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.330 in waitlist of Zonal Office , Trichy . So far 212 waitlisted temporary candidates, out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above, cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement, employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria, under category ( A) the temporary employees who were engaged for 240 days were to be considered and under category ( B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after. 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 330 , 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 . Itis 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 settlementdrawn under provisions of Sections 18 ( 1 ) and 18 (3 ) of I.D. Act in lieu ofprovisions 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 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 espousedby State Bank of India Staff

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THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 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 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 :-

(0) "Whether the demand of the Petitioner in Wait List No. 330 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?"

[PART II-SEC . 3 ( ii) ] Point No. 1 :

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars 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 atbranches/ offices are not allowed to be in service exceeding 200 days , hence the question of Petitioner working for 240 days does not arise at all . Further, they have invoked the relevant provisions of Chapter V- A ofthe I.D. Act and it is preposterous to contend that the Petitioner 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 8261

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन7,1929

[ भाग II- खण्ड 3 ( ii ) ]

there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No. 7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis. In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate 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 industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case oftemporary employees in the matter of absorption. Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex . 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 ist . 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 ne Respondent/Bank produced the wait list Ex . M10 before this Tribunal ınarking 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 1. D. Act, 1947.

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V-A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit ofthe workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex . Ml and the averments of MWI and MW2 and their testimonies during the cross - examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . Ml deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A, B & C ' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 (a ) of Ex.Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave / casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of tempotary employees is not valid . Further , engaging casuals to do messengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copy ofwhich is marked as Ex . W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection . But, temporary employees have not beeninformed about this amendment which includes casuals affecting their interest and chance. Further , as per instructions in Ex. W2 four types ofwaiting lists have to be prepared. But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex. M 10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW I is unable to say as to when the wait list Ex . M10 was prepared , but itis mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex. MI , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further, according to MW1 wait list under Ex . M10 was prepared on 2-5-92 but 8262

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[PART II -SEC . 3 ( ii) ]

case: The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act, therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It isfurther contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that "the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault oftheirs , they find themselves stranded in life midstream . They have also not gainfully employed . In such circumstances , this Tribunal has to pass an award in their favour .

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 . M 10 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 . M 4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and incase , a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination 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 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

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 8263 [भाग II- खण्ड 3 ( ii) ]

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

12. But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive inthe matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints 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 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 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 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 К.С. P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that "settlements are divided into two categories namely (i) those arrivedat 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 8264

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

[PART II-SEC . 3 ( ii) ] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC1664 VAN SAGNATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER , LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank andtherefore, this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it isnot questioned by any of the unions of the Respondent/ Bank , I find the Petitioner is not entitled to question the settlement .

14. Then the learned , counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that" in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that" by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion oftheir names in the said panel for permanent absorption in the services of the bank . Whatever conditional right theyhad cometo an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the leamed Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/ Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997, the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad - hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad -hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy ; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; ( c) he was not eligible and qualified for the post 8265 [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

theirdisengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ ( Supp . ) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come - first go ' is not mandatory 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 cannotbe 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 I SECRETARY, STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment, do not acquire any right . " Further , it has also held that it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further, the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS at the time of his appointment; (d) his record of service since his appointment is not satisfactory . These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad - hoc employee for one year, it cannot be presumed that there is need for regular post . Such a presumption may be justified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one . From this , the impugned directions must be held to be totally untenable and unsustainable . " Thus , the Supreme Court set aside the orders of Lower Courts . He further relied on the decision reported in 1997 II SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation 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 employces 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 retrencliment 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 , 8266

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 ,

LTD . AND OTHERS VS. SOMVIR SINGH, wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period ofprobation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR , the Supreme Court has held that" it is not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 of the Constitution of India would be void in law. " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation of his service. Further, when they have not been questioned the five settlernents entered into between the Respondent/ Bank and Federation and since they have not questioned the waitlist prepared by the Respondent/Bank , they are not entitled to dispute the same and they are estopped from doing so . Further, their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation ofwait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

[ PART II- SEC . 3 ( ii )] ofmala fide, misrepresentation, fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/ Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services ofthe Respondent /Bank .

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

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

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 daythe 31st January , 2007.)

K. JAYARAMAN, Presiding Officer Witnesses Examined :--

For the Petitioner

17.1 find much force in the contention of the learned counsel for the Respondent . Though in the Claim Statement, the Petitioners have made so many allegations 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 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

WWISri G. Jagadesan 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 daily Thanthi based on Ex. MI .

[भाग II- खण्ड 3 (ii) ]

8267

, 1929

भारत को राजपत्र : सितम्बर 29 , 2007/आश्विन 7

Ex. No. Date

Ex. No. Date

Description

Description

W2 20-04-88

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

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

W19 Feb. 2005

W3 24-04-91

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

W20 13-02-95

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

W4 01-05-91

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

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

W21 09-11-92

W5 20-08-91

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

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

W22 09-07-92

W6 15-03-97

Xerox copy of the minutes of Bipartite meeting.

W23 09-07-92

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

W7

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 .

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 .

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

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 .

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

W9 13-06-88 Xerox copy of the service certificate issued by Tiruchirappalli Heavy Electricals branch .

For the Respondent/ Management :-

W10 08-10-97

Ex.No. Date

Description

Xerox copy of the service certificate issued by Tiruchirappalli Heavy Electricals branch .

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

W11 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& service conditions .

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

W12 Nil

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

Xerox copy ofVol . III ofReference book onStaff matters upto 31-12-95.

M6 09-06-95

W13 06-03-97

Xerox copy of the minutes ofconciliation proceedings .

M7 28-05-91

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

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

W14 06-03-97

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

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

M9

:

10-07-99

W15 06-03-97

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

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

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

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

M11 25-10-99

W17 26-03-97

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

Xerox copy of the letter advising selection ofpart time MenialG. Pandi .

3855 GI/2007-42 8268

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007 /ASVINA 7 , 1929

[PART 11-SEC . 3 (ii ) ] नई दिल्ली , 27 अगस्त , 2007

thedispute on its file as CGID No.108 /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. 118/2004 .

का.आ. 2820. 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 118/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/393/1998- आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August, 2007

"Whether the demand of the workman Sri G.Raman , wait list No. 369 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. 2820. -In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No118/ 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 27-8-2007 .

[No. L- 12012/ 393 / 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. 118/2004 [Principal Labour Court CGID No. 108/99]

[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.Raman

: I Party/Petitioner

AND

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

APPEARANCE

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

For the Management : M/s.V.Sundar Anandan,

Advocates

AWARD

1. The Central Government Ministry ofLabour , vide Order No. L- 12012/393 /98 - IR (B - I ) dated 8-2-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Villupuram branch from 12-04-1982 . The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition 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 Villupuram 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 12-04-1982, the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temprorary basis in Villupuram 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 8269 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7,1929

[भाग II- खण्ड 3 ( ii) ]

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 mentionedby the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in tabsorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination ofthe 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 .

17-11-87, 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) ofI.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 378 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 up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced . There were no regular vacancies available . The peculiar problem was dueto the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 378 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far andthe settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment (Conferment of Permanent Statusto Workmen) Act, 1981 does not apply to Respondent/Bank andthis 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 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement. The settlementdrawn under provisions of Sections 18( 1 ) and 18(3 ) of I.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length 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 8270

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[PART II-SEC . 3 ( ii) ]

Point No. 1 :

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

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars 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-Petitionbefore the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil) 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore, they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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

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

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

(1) "Whether the demand ofthe Petitioner in Wait List No. 369 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 ?"

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 [ भाग II-खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

8271 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 towhom section 25F applies but for all cases of retrenchment. Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that onbehalf of the Petitioner that Ex . W2 , W3 and W8 as well as Ex. M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of MWI and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . Ml deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come first go ' or ' first come-last go ' and therefore , the categorization in Clause I isillegal . Clause 1 ( a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers , farashes , cash coolies, water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked asEx . W8 . Further , the appointment 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, butitismentioned in Ex.M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex.MI , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MWI wait list under Ex.M10 was prepared on 2-5-92 but

there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit, in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India. ' Further , the averment ofMWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . Itis further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex.M10 comprises of both messengerial and non- messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore, both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation ofEx. M 10 namely wait list is not in conformity with the instructions 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 . MI was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 ( oo ) of the 1.D. Act, 1947.

8272

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 / ASVINA 7, 1929

the case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial DisputesAct , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore, they are deemed to be in continuous service 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 ofthe Petitioners in the connected I.Ds have not completed 240 days , since Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence, they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 11 LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION Vs. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression ' actually worked under the employer' cannot mean that those days onlywhenthe workmen worked with hammer, sickle or pen butmust necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements /lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months andthey are in age group of 40 to 50 years and for no fault oftheirs , they find themselves stranded in life midstream . They have also not gainfully employed . In such circumstances, this Tribunal has to pass an award in their favour.

10. But, as against this , the learned senior counsel for the Respondent/Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further , the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18( 3 ) of the ID. Act, in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim of the Petitioners are not 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 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 ofthe 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 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 MII interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any 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 [ भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

8273

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 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 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 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 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 19971 LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 ( 1 ) of the 1.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3) . A settlement ofthe 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

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 ofa reference . Even though the Tribunal cannot go beyond the order of reference , ifpoints of difference are discernible from the material before it, it has only 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 8274

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

[PART II- SEC. 3 ( ii) ] 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 inanner. " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framedto the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and candecide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitledto the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it 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. IJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made inview of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that itwas a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry ofthe panel . The claim of the Respondents as contained in theW.P. was thus , misconceived and therefore, the learned SingleJudge and the Division Bench , when it firstdecided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDIA wherein the Supreme Court has held that" candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry 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 8275 [ भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

Since they are only daily wage employees and have no right to the posts , their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ (Supp) 754 wherein the Rajasthan High Court has held that "Under Section 25G of the I.D.Act retrenchment procedure following principle of ' last come - first go ' is not mandatory butonly directory, on sufficient grounds shown , the employer is permitted to depart from the said principle retrenching seniors and retaining juniors . " Though in this case, the Petitioner has alleged that his juniors have been made permanent in banking service , he has not established with any evidence that his juniors were made permanent by the Respondent /Bank. Any how , if the Petitioner has shown anything , the Respondent/Bank is readyto establish the fact before this Tribunal that he has worked more days than the Petitioner . In such circumstances , the prayer for reinstatement in the services of Respondent/Bank cannot be given to the Petitioner and, therefore , the claim is to be dismissed with costs .

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 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 ofthese employees whose entry itself was illegal and void is concerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned . But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility.It would amount to decorating a still born baby . Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore, remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed 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 .

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 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 scheine of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently. By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law , has clearly held that " unless the appointment is in terms ofthe relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " 3855 GI /2007-43 8276

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929

[PART II - SEC . 3 ( ii) ]

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 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 .

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, 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 entitledto beabsorbed in regular service or made permanent merely on the strength of such continuance of work, 1 find the Petitioner is not entitled to any relief as claimed by him . No Costs .

21. Thus , the reference is answered accordingly .

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

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 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 thercon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them. Under such circumstances , it cannot be questioned by the Petitioner.

For the Petitioner WW1 Sri G. Raman 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 . MI .

W2

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

20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex. M1 .

[ भाग II - खण्ड 3 ( ii) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

8277 Ex. No. Date

Ex.No. Date

Description

Description

W3 24-04-91

W18 31-03-97 Xerox copy of the appointment order to SriG. Pandi ,

Feb. 2005

W19

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

Xerox copy of the pay slip of T. Sekar for the month ofFebruary, 2005 wait listNo. 395 ofMadurai Circle .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4 .

W20 13-02-95

W5 20-08-91

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

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

W21 09-11-92

W6 15-03-97

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

W22 09-07-92

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

Xerox copy of the minutes of Bipartite meeting.

W7

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

W8 Nil

W24 07-02-06

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

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

W9 15-07-82

W25 31-12-85

Xerox copy of the service certificate issued by Villupuram branch.

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

W10 04-07-84 Xerox copy of the service certificate issued by Villupuram branch .

For the Respondent/Management :--

Ex. No. Date

W11 Nil

Description

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

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

Xerox copy of the administrative guidelines in reference book on staff matters issuedby respondent /bank regarding recruitment to subordinate cadre& service conditions ,

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

W12 Nil

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

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

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

W13 06-03-97

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

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

M7 28-05-91

W14 06-03-97

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

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 ofHigh Court ofOrissa.

W15 06-03-97

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

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

M10 Nil

W16 17-03-97

Xerox copy of the wait list of Trichy Module.

Xerox copy of the service particulars -J. Velmurugan .

M11 25-10-99

W17 26-03-97 Xerox copy of the letter advising selection of part time Menial G. Pandi .

Xerox copy of the order passed in CMP No.16289 and 16290/99 in W.A. No. 1893/99, 8278

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

[PART 11-SEC . 3 (ii)] नई दिल्ली , 27 अगस्त, 2007

thedispute on its file as CGID No. 116/99 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. 125/2004 ,

का.आ. 2821.-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 125/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल-12012/276/1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August, 2007

"Whether the demand of the workman Sri R.Vijayakumaran , wait list No. 534 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. 2821. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No125/ 2004) of the Central Government Industrial Tribunal- Cum- Labour Court , Chennai as shown in the Annexure in the Industrial Dispute between the management of State Bank of India and their workmen , received by the Central Govemment on 27-8-2007 .

[No. L- 12012/276/1998 - 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. 125/2004

[Principal Labour Court CGID No. 116/99]

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

BETWEEN

Sri R.Vijayakumaran

: 1 Party/Petitioner

AND

The Assistant General Manager , II Party/Managernent StateBank of India , Region - 1 Trichirapalli.

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 OrderNo. L - 12012/276/ 98 - IR (B - I ) dated 09-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Sripuranthan branch from 14-04-1988 . The Petitioner was orally informed that his services were no more required . The non- employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter, filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption 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 advertiseinents . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Sripuranthan branch . He was called for an interview by a Committee 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 14-04-1988 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temprorary basis in Sripuranthan branch , another advertisement by the Respondent/ Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 8279 [ भाग II-खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7, 1929

1-4-97 . Hence, the Petitioner raised a dispute with regard to his non -employment. Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days workedby Petitioner were treated as of no consequence , since according to the Respondent/ Bank , it engaged the Petitioner only in temporary services after the settlement .. The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H 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 temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

Federation which resulted in five settlements dated 17-11-87, 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) 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.534 in waitlist of Zonal Office, Trichy . So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/ Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having -submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement , employees were categorised as A , B, and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; ( B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7 , the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of 652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 534 , 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 1.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority . Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards. Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff 8280

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ ASVINA 7, 1929

[PART II-SEC. 3 ( ii ) ]

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 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 rulesof the Respondent/ Bank , recruitment of class IV staff in the Respondent/ Bank is in accordance with the instructions laid down under codified circulars of the Respondent/ Bank. Even in the Writ Petition before the High Court in W.P.No.7872 of 1991 , the Petitioner questioned the settlement dated 27-10-88 and 9-1-91 . It is false to allege that the settlements are contrary to the rights ofthe Petitioner . Hence , the Petitioner prays that an award 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. 534 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 ? "

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 froin 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 Respond.it/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 tobe reinstated . Learned representative for the Petitioner [भाग II- खण्ड 3 ( ii ) ]

8281 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

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 onbehalfof the Petitioner that Ex . W2 , W3 and W8 as well as Ex . M8 which constitute/relate to the circular instructions of the Respondent/Bank issued from time to time in connection with the implementation of the settlements on absorption and which are statutory in character . Further , a combined study of Ex.Ml and the averments of 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 isillegal . Clause 1 ( a ) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/ casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further, engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy 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 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 MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , accordingto MWI wait list under Ex.M10 was prepared on 2-5-92 but

there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear 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 towriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MWI wait list under Ex.M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore, both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 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 themto 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 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 .

8282

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 / ASVINA 7, 1929

[ PART 11- SEC. 3 ( ii) ]

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of 1.D. Act . It isfurther contended on behalf of the Petitioner that though some of the Petitioners in the connected 1.Ds have not completed 240 days , since the Respondent/ Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 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 .

Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative ofthe Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employ workmen as 'badlies ', casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense, since the selected candidates with longest service should have priority over those who joined the service later and therefore, the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent/ Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it . Though clause 2 ( e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though theRespondent/Bank has produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18 (3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says only with regard to modification of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner. Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . Ml to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme , In the 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

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 8283 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 3 (ii ) ]

the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement , it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 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 ofyet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reached with the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions, learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement , since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore , it is binding on the Petitioner . Further, he argued that no union of the bank has questioned the settlement and in such circumstances , it cannot be said that it is not binding on them and he is estopped from disputing the same .

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

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 ofreference is not decisive in the matter oftenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints ofdifference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into 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 1 LLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNALA.P . AND OTHERS wherein under Section 12(3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workınen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily. But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 11 LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen ofthe establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement. " It further held that " there may be exceptional cases , where there may be allegations ofmala fides, fraud or even corruption or other inducements . But , in the absence of such allegations, a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 K.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 ofthe second category made with a recognised majority union has extended application as it will be binding on all workmen ofthe establishment. Even in case of the first category, if

3855 GI /2007-44 8284

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7, 1929

[PART II-SEC. 3 ( ii) ] the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature ofdispute instead of refusing to answer the reference on merits . " Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LABIC 1664 VAN SAGNATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties . " He also relied on the rulings reported in 1998 LAB 1C 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS, wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, itshould consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore , this Tribunal can look into the pleadings ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. 1 find some force in the contention of the representative for the Petitioner . Therefore , 1 find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it is not questioned by any of the unions of the Respondent / Bank, 1 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 removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that theRespondents did not get any right because of inclusion oftheir names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , inisconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH VS. UNION OF INDIA whereinthe Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot be said that preparation of wait list was made with mala fide motive. Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as 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 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 8285 [भाग II- खण्ड 3( ii ) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

their disengagement is not arbitrary . " He further relied on the rulings reported in 1994 3 LLJ ( Supp .) 754 wherein the Rajasthan High Court has held that " Under Section 25G of the 1.D.Act retrenchment procedure following principle of ' last come - first go ' is not 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 Pctitioner and , therefore , the claim is to be dismissed with costs.

15. Learned Senior Advocate further argued that even

in recent decision reported in 2006 4 SCC I SECRETARY ,

STATE OF KARNATAKA Vs. UMA DEVI , the Supreme

Court has held that " merely because a temporary employee

or a casual 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

appointinent was not made by following a due process of

selection as envisaged by relevant rúles . 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 employinent so as to eke out

his livelihood and accepts whatever he gets . But on that

ground alone , it would notbe appropriate to jettison the

constitutional scheine of appointinent, 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 inerely on the strength of such continuance , if

the original appointment was not made by following a

due process of selection as envisaged by relevant ndes ." 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 Supreine Court set aside the orders of lower Courts . He further relied on the decision reported in 1997 11 SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirination ofthese employees whose entry itself was illegal and void isconcerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad -hoc basis against an available vacancy which is already sanctioned . But , if the initial entry itself is unauthorised and is not against any sanctioned vacancy, question of regularising the incumbent on such a non - existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given, it would be an exercise in futility.It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank . Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OFBIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no right to the posts , Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS 8286

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

[PART II-SEC . 3( ii)]

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 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/Bankas alleged by him . Therefore, I find this point against the Petitioner.

LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity , the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise ." Further, 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 . "

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 ofhis service. Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list preparedby the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them . Under such circumstances , it cannotbe questioned by the Petitioner.

WWI Sri R. Vijayakumaran WW2 Sri V. S. Ekambaram

For the Respondent MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :-

Ex. No. Date

Description

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

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 , atthe 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 issuedby Respondent/Bank for implementation ofEx .M1 .

[ भाग II- खण्ड 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 Xerox copy of the circular of Respondent/Bank to all Branches regarding identification of massenger vacancies and filling them before 31-3-97 .

W8 Nil

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

W9 Nil

Xerox copy of the service certificate issued by Sripuranthan 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 .

WII Nil

Xerox copy of the Vol. 111 of Reference book on Staff matters upto 31-12-95 .

06-03-97

W12

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

06-03-97

W13

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

06-03-97

W14

Xerox copy of the call letter from Maduri 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 .

8287

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

Ex. No. Date .

Description

W18 Feb. 2005 Xerox copy of the pay slip of T. Sekar for the month of February, 2005 wait list No. 395 ofMadurai Circle .

W19 13-02-95 Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list , W20 09-11-92 Xerox copy of the Head office circular No. 28 regarding Norms for sanction of messenger staff.

W21 09-07-92 Xerox copy of the minutes of Bipartite meeting.

W22 09-07-92 Xerox copy of the ssettlement between Respondent/Bank and All India Staff Bank of India Staff Federation for implementation of norms-creation of part time general attendants .

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

31-12-85

W24

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

For the Respondent/Management :-

Ex. No. Date

Description

MI

Xerox copy of the settleinent .

17-11-87

M2

Xerox copy of the settlement .

16-07-88

M3

Xerox copy of the settlement .

27-10-88

M4

Хегоx copy of the settlement .

9-01-91

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

M6 09-06-95 Xerox copy ofthe minutes ofconciliation proceedings .

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

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

M9 10-07-99 Xerox copy ofthe 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 Nos . 16289 and 16290/99 in W.A. No. 1893/99.

8288

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

[PART II- SEC . 3 ( ii)] नई दिल्ली , 27 अगस्त, 2007

taken the dispute on its file as CGID No. 115/99 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 itas I.D. No. 124/2004.

का.आ. 2822, 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 124/2004 ) को प्रकाशित करती है, जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/275/ 1998- आईआर ( बी -1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August, 2007

"Whether the demand of the workman Shri P. Ramadas, wait list No. 232 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger isjustified? 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. 2822. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award ( Ref. No124/ 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 27-8-2007 .

[No. L- 12012/275/ 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. 124/2004

[Principal Labour Court CGID No. 115/99 ]

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

BETWEEN

Sri P. Ramadas

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised

Representative .

For the Management

: Mr. F. B. Benjamin George, 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 Kattur ADB branch from 1986. The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter, filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/ Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Kattur ADB branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But, they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 1986 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Kattur ADB branch , another advertisement by the Respondent/Bank was made regarding casual workers who were reported to be in service during the same period . While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1. The Central Government, Ministry of Labour , vide OrderNo. L- 12012/275/ 98 - IR (B -I) dated 09-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has 1-4-97. Hence, the Petitioner raised a dispute with regard to 8289 [भाग II- खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

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 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 .

17-11-87 , 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3 ) of I.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 232 in waitlist of Zonal Office , Trichy . So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria , under category(A) the temporary employees who were engaged for 240 days were to be considered and under category ; ( B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered. As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to31-3-97 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 232 , 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 . TheTamil 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 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 ) of 1.D. Act in lieu of provisions of law, retrenchment and implemented by Respondent/Bank. The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency , the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and when their case was espoused by State Bank of India Staff Federation which resulted in five settlements dated permanent messenger . As per settlements , vacancies upto 8290

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

[PART II-SEC . 3 ( ii)]

Point No. 1 :

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines /circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 ( Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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 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. 232 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 ? "

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 tobe reinstated. Learned representative for the Petitioner 8291 [ भाग II- खण्ड 3( ii ) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन7, 1929

contended that in 1996 LAB & IC 2248 CENTRAL BANK 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 by the Respondent/ Bank by combing equals with unequals . It isfurther contended on behalf of the Petitioner that as perdeposition ofMW1 wait list under Ex. M10 comparises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement, it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore, it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is not 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 pursuantto 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 on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take 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 of 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 settlernents 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& 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 providesan 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 waitlist for each module as per Ex.M 10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based onthe settlement dated 17-11-87, 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to

3855 Gl /2007-45 8292

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

[PART 11-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 is further contended on behalf of the Petitioner that though some of the Petitioners in the connected 1.Ds have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 11 LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or 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.

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 MWI . 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 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 MS . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 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 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 8293 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii) ]

ofthe establishment. Even in case of the first category, if the settlement was reached with a representative union of which the contesting workmen were members and if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also." He further relied on the rulings reported in AIR 2000 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 arrivedat on account offraud, misrepresentation or concealment offacts or even corruption and other inducements , it could be subject- matter ofyet another industrial dispute which an appropriate Government may refer for adjudication after examining the allegations as there is an underlying assumption that the settlement reachedwith the help of the conciliation officer must be fair and reasonable. " Relying on all these decisions , learned counsel for the Respondent contended that though it is alleged that they are not parties to the settlement, since the Federation in which the Petitioner is also one among them , they have entered into settlement with the bank and therefore, it is binding on the Petitioner . Further, he argued that 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 .

UNIC 12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the inatter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference, subjecting the poor workman to hardship involved in moving the machinery length of his engagement and could not be absorbed as he was positioned down in the seniority. The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/Bank and the Federation were 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 settleinents and operate throughout the country . Further , he relied on therulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.P. AND OTHERS wherein under Section 12 (3 ) the union entered into a settlement with the management settling the claim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud, misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen 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. Itfurther held that " there may be exceptional cases, where there inay 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 Supreine 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 application as it will be binding on all workmen 8294

[PART II-SEC. 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 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 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 ofthe Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance.

13. I find some force in the contention of the representative for the Petitioner. Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted , now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V. VIJEESH wherein the Supreme Court has held that " the only question which falls for determination

in this appeal is whether a candidate whose name appears in the select list on the basis of conmpetitive 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 ofthe impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits. In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 6SCC584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion oftheir names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list, it cannot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad- hoc temporary employees who have continued for more than a year should be regularised, we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad - hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (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 [ भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

8295 door; ( c) he was not eligible and qualified for the post 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 .

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 bę 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 11 SCC 1 ASHWANI KUMAR AND OTHERS VS. STATE OF BIHAR AND OTHERS wherein the Full Bench of the Supreme Court has considered the above regularisation of appointment in excess of sanctioned posts . " So far as the question of confirmation ofthese employees whose entry itself was illegal and void isconcerned, it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad -hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility. It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore , remained a nullity. " Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OF BIHAR AND ORS . wherein the Supreme Court has held that " they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act . The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are

15. Learned Senior Advocate further argued that even inrecent decision reported in 2006 4 SCC 1 SECRETARY, STATE OF KARNATAKA Vs. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad - hoc employees who by the very nature of their appointment , do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain- not at arms length since he might have been searching for some employment so as to eke out hislivelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms ofthe relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " 8296

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

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 , 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 oftheConstitution of India would be void in law. " Further, in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION Vs. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the 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 , leamed counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service . Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list prepared by the Respondent/Bank, they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list . Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list ar 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

[PART II-SEC . 3( ii) ] ofmala fide, misrepresentation , fraud or even corruption or other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services ofthe Respondent /Bank .

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

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

K. JAYARAMAN, Presiding Officer Witnesses Examined :-

For the Petitioner WW1 Sri P. Ramadoss WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T. L. Selvaraj Documents Marked :---

Ex, No. Date WI Description 01-08-88 Xerox copy of the paper publication in daily Thanthi based on Ex .M1 .

W2 20-04-88 Xerox copy of the administrative guidelines issuedby Respondent/Bank for implementation of Ex . M1 .

[ भाग II- खण्ड 3 ( ii ) ]

8297

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

Ex. No. Date

Description

W3 24-04-91 Xerox copy of the circular of Respondent/Bank to all branches regarding absorption of daily wagers in Messenger vacancies .

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex . W4.

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

W6 15-03-97 Xerox copy of the circular letter of Zonal Office, Chennai about filling up of vacancies of 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 04-01-88 Xerox copy of the service certificate issued by Kattur ADB Branch .

08-02-93

W10

Xerox copy of the service certificate issued by Tiruchirapalli Town branch .

23-09-94

W11

Xerox copy of the service certificate issued by Tennur branch .

W12 29-01-94 Xerox copy of the service certificate issued by Tiruchirapalli Z.O. branch.

W13 23-06-96 Xerox copy of the service certificate issued by Kattur ADB Branch .

:

W14 23-06-98 Xerox copy of the service certificate issued by Kattur ADB Branch .

W15 Nil

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

W16 Nil

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

W17 06-03-97 Xerox copy of the call letter from Madurai Zonal Office for interview of messenger post-V . Muralikannan .

06-03-97

W18

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

06-03-97

W19

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

Date

Ex . No.

Description

17-03-97

W20

Xerox copy of the service particulars - J. Velmurugan.

W21 26-03-97 Xerox copy of the letter advising selection ofpart timeMenial-G . Pandi .

W22 31-03-97 Xerox copy of the appointment order to SriG. Pandi .

W23 Feb. 2005 Xerox copy of the pay slip ofT. Sekar for the month of February, 2005 wait list No. 395 of Madurai Circle .

W24 13-02-95 Xerox copy of the Madurai Module circular letter about engaging temporary employees from the panel of wait list .

09-11-92

W25

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

W26 09-07-92 Xerox copy of the minutes ofthe Bipartite meeting.

09-07-92

W27

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

W28 07-02-06 Xerox copy of the local Head Office circular about conversion of part time employees, and redesignate thein 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

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

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 .

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 .

[PART II- SEC . 3 ( ii) ] THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

8298

नई दिल्ली , 27 अगस्त, 2007

takenthe dispute on its file as CGID No. 113/99 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 itas1.D. No. 123/2004 .

का.आ. 2823.-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 123/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/241/1998- आईआर ( बी-1 ) ] अजय कुमार, डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Shri C. Raman wait list No. 378 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. 2823. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No123/ 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 27-8-2007 .

[No. L- 12012/241 / 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. 123/2004

[Principal Labour Court CGID No. 113/99]

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

BETWEEN

SriC. Raman

: 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.

:

Mr. F. B. Benjamin

For the Management

George , Advocates

AWARD

The Petitioner was sponsored by Employment Exchange for the post ofsub- staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Villupuram main branch from 04-06-1981 . The Petitioner was orally informed that his services were no more required. The non -employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank, in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Villupuram 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 4-6-1981 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temporary basis in Villupuram Main branch , another advertisement by the Respondent /Bank was made regarding casual workers who were reported to be in service during the same period. While the Petitioner was working as such , the Manager of the branch informed the Petitioner orally on 31-3-97 that his services are not required any more and he need not attend the office from 1-4-97 . Hence , the Petitioner raised a dispute with regard to I. The Central Government , Ministry of Labour, vide Order No. L- 12012/241 /98 - IR (B - I ) dated 08-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has 8299 भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii) ]

hisnon -employment . Since the conciliation ended in failure , the matter was referred to this Tribunal for adjudication. Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt. to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course. The Respondent/ Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party tothe settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal. Further, the settlements are repugnant to Sections 25G & 25H of the 1.D. Act . The termination of the Petitioner is against the provisions of para 522(4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/ Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment ofpetty 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 .

17-11-87, 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 ( 3 ) of I.D. Act. In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 369 in waitlist of Zonal Office, Trichy . So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed. Under the settlement , employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category; (B ) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category (C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment . The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 369, 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 . TheTamil Nadu Industrial Establishment (Conferment of Permanent Status to Workmen ) Act , 1981 does not applyto Respondent/ Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correct to say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was discharging the work of permanent messenger . As per settlements , vacancies upto 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 ofthe Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length ofengagement and could not be absorbed as he was positioned down in seniority. Due to the business exigency, the Respondent/ Bank engaged the temporary employees for performance of duties as messenger and such engagements were prevailing from the year 1970 onwards . Such of those employees who are claiming permanent absorption and whentheir case was espoused by State Bank of India Staff Federation which resulted in five settlements dated

3855 G1/2007-46 8300

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7 , 1929

[PART II-SEC . 3 ( ii) ]

Point No. 1 :

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines /circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temperary employees in the year 1985 , the State Bank Employees Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 ( Civil) of 1987, the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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

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

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

(1) "Whether the demand of the Petitioner in Wait List No. 378 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?"

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 8301 [भाग II- खण्ड 3 (ii) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

MW1 wait list under Ex.M10 was prepared on 2-5-92.but there is no pleading in the Counter Statement with regard to this wait list. Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P. No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis. In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment ofMW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition 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 basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But, Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx . M 10 namely wait list is not in conformity with the instructions of Ex.M2 and non- preparation of separate panels amounts to violation of circular. Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released / published even after the Court order in WMP No. 11932/9 ] 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 . MJ was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced thewait list Ex . M10 before this Tribunal marking it as a confidential document. It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy , they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take contended that in 1996 LAB & IC2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted only for the benefit of the workmen 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 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 MWI and MW2 and their testimonies during thecross-examination will clearly show how the bank has given a raw deal to the Petitioner front the beginning linking his future with the settlements . Further , Clause 1 of Ex . M1 deals with categorization of retrenched temporary employees into ' A, B and C ' , but this categorization of'A, B & C' is quite opposed to the doctrine of ' last come-first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a) of Ex.M1 provides an opportunity to persons who were engaged on casual basis and allowed to work in leave/casual vacancies ofmessengers , farashes , cash coolies, water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid . Further , engaging casuals to do incssengerial work is in contravention ofthe guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex . W8 . Further, the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars / instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid. Therefore , these persons who were engaged by the Respondent /Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving at qualifying service for interview and selection. But, temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further, as per instructions in Ex. W2 four types of waiting lists have 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.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 8302

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 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 is further contended on behalf of the Petitioner that though some of the Petitioners in the connected I.Ds have not completed 240 days , since the Respondent/ Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault oftheirs , they find themselves stranded in life midstream . They have also not gainfully employed . In such circumstances, this Tribunal has to pass an award in their favour .

them out ofthe principal clause 2 (oo) of the I.D. Act, 1947 . Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employ workmen as ' badlies ' casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex. M10 which has been drawn up is contrary to law and also bad in law . Thus , the Respondent/ Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it. Though clause 2( e) of Ex. M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period , he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore, the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central) , Hyderabad , it is neither a 18 ( 3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says onlywith regard to modification of Ex. MI to M4 made in terms of Ex . M6 . Though the Respondent/ Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked asEx . MI to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme . In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence

10. But, as against this , the learned senior counsel for the Respondent/ Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/ absorption does not arise at all and their engagement was not authorised . Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the ID. Act , in lieu of the provisions of law and implemented by the Respondent/ Bank and the claim ofthe Petitioners are not bona fide and are made with ulterior motive . Further , they have concealed the material facts that the Petitioner was wait listed as per 8303

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 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 if there was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC 469 NATIONAL ENGINEERING INDUSTRIES LTD. Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them . When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements, it could be subject - matter ofyet another industrial dispute which an appropriate 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 13 not valid. Further , in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

12. But , as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference , ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery 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 INDÚSTRIES 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 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 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 ofthe second category made with a recognised majority union has extended application as it will be binding on all workmen of the 8304

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 1929

[PART II-SEC. 3 ( ii) ] again. " It further held that " the Tribunal should look into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead ofrefusing to answer the reference on merits . " Further , he argued that the Tribunal has got power to go into the questionwhether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS Vs. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that " the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN VS. PRESIDING OFFICER, LABOUR COURT, MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, itshould consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not, from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ Bank and therefore, this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him . Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. 1 find some force in the contention of the representative for the Petitioner . Therefore , 1 find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But, I find that the settlement was validly entered into between the Respondent/Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank, I find the Petitioner is not entitled to question the settlement .

\

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination

in this appeal is whether a candidate whose name appears in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy . " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory." He further relied on the rulings reported in 1997 6SCC584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that "by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore, the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF 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 sponsoredby Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back 8305 भारत का राजपत्र : सितम्बर 29 ; 2007/आश्विन7, 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 isnot aware ofhis employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment, perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " 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 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 , 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 8306

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 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 "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 , in2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION Vs. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . " 16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post , the Petitioner is not entitled to claim regularisation of his service. Further , when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list preparedby the Respondent/ Bank , they are not entitled to dispute the same and they are estopped from doing so . Further , their prayer before the labour authorities was only to restore the wait list and also for appointment thereon as temporary messenger as per wait list. Under such circumstances , after expiry of the period mentioned in the settlements which were subsequently amended by settlements , the Petitioners cannot now question either the preparation of wait list or number allotted to them . Under such circumstances , it cannot be questioned by the Petitioner.

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,

[PART II -SEC. 3 (ii) ] ofmala fide , misrepresentation , fraud or even corruption or other inducements . Under such circumstances , 1 find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed, I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

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

Point No. 2 :

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

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

21. Thus , the reference is answered accordingly.

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

K. JAYARAMAN , Presiding Officer Witnesses Examined:-

Forthe Petitioner WW1 Sri C. Raman 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 .

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forr implementation of Ex . M1 .

8307 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II-खण्ड 3 ( ii) ]

Date

Ex. No.

Description

Date

Ex.No.

Description

31-03-97

W20

W3

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

Feb. 2005

W21

24-04-91 Xerox copy of the circular of Respondent /Bank to all Branches regarding absorption of daily wagers in Messenger vacancies .

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

W4 01-05-91 Xerox copy of the advertisement in The Hindu on daily wages based on Ex. W4.

W22 13-02-95

W5 20-08-91

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

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

09-11-92

W23

W6 15-03-97

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

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

W24 09-07-92 Xerox copy of the minutes of Bipartite meeting.

W7

09-07-92

W25

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

W9 07-06-84

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

Xerox copy of the service certificate issued by Villupuram Branch.

W27

27-12-88

W10

Xerox copy of the service certificate issued by Tiruchirapalli branch .

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

26-09-90

W11

For the Respondent/Management :-

Xerox copy of the service certificate issued by Villupuram branch .

Date

Ex. No.

Description

02-12-94

W12

Xerox copy of the service certificate issued by Tindivanam branch .

M1

Xerox copy of the settlement .

17-11-87

W13 Nil

M2

Xerox copy of the settlement .

16-07-88

M3

Xerox copy of the settlement .

27-10-88

M4

Хегохx copy of the settlement .

09-01-91

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

M5

Xerox copy of the settleinent .

30-07-96

W14 Nil

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

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

06-03-97

W15

M7 28-05-91

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

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

06-03-97

W16

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

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

M9 10-07-99

06-03-97

W17

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

M10 Nil

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

Xerox copy of the wait list of Trichy Module.

17-03-97

W18

Xerox copy of the service particulars -J. Velmurugan .

25-10-99

M11

26-03-97

W19

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

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

3855 GI/2007-47 8308

THE GAZETTE OF INDIA: SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

नई दिल्ली , 27 अगस्त, 2007

का.आ. 2824.-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 122/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था । [सं. एल-12012/395/1998 - आईआर( बी-1 ) ] अजय कुमार, डेस्क अधिकारी New Delhi , the 27th August , 2007

S.O. 2824. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref. No. 122/ 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 27-8-2007 .

[No. L- 12012/ 395 / 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. 122/2004

[Principal Labour Court CGID No.112/99 ] [In the matter ofthe dispute for adjudication under clause (d) of sub - section ( 1 ) and sub- section 2 (A) of Section 10 of the Industrial Disputes Act , 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen]

BETWEEN

Sri N.Sengalani

[PART II-SEC . 3 (ii) ] the dispute on its file as CGID No. 112/99 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. 122/2004 .

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

"Whether the demand of the workman Sri N.Sengalani , wait list No. 416 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified? If so , to what relief the said workman is entitled ?"

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

: I Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram , Authorised Representative .

For the Management : M/s.V.Sundar Anandan , Advocates

AWARD

1. The Central Government Ministry of Labour, vide Order No. L- 12012/395 /98 - IR (B - I ) dated 08-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court , Chennai and the said Labour Court has taken The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Villupuram branch from 18-11-1981.The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank , in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were. denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Villupuram branch .He was called for an interview by a Committee appointed by Respondent/Bank in this regard. But , they have not informed the result of interview and also with regard to appointment . But , the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 18-11-1981 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temprorary basis in Villupuram 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 8309 [ भाग II-खण्ड 3 (ii ) ]

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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 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 temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

Federation which resulted in five settlements dated 17-11-87, 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18(3 ) of I.D.Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 416 in waitlist ofZonal Office, Trichy . So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointedby Respondent/Bank . It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number 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 oftemporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December , 1991 and the cut off date was extended up to31-3-97 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 settlernents , out of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 416 , 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 inaintainable . 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 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 teinporary 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 8310

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

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

(0) "Whether the demand of the Petitioner in Wait List No. 416 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 ?"

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

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored byEmployment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines /circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees '' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned andwhile the matter was pending in Writ Petition No. 542 ( Civil ) 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. 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 8311 [ भाग II- खण्ड 3 ( ii ) ]

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there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further, the averment ofMWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bythe Respondent/ Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex.M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation ofEx. M 10 namely wait list is not in conformity with the instructions of Ex.M2 and non -preparation ofseparate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994 . Furthermore , no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/ Bank to release the list of successful candidates pursuant to the first advertisement published in ' The Hindu' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex. M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/ Bank produced the wait list Ex . M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy. Further, even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo ) of the I.D. Act, 1947.

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V- A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore, the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that 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.MI 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 . 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 theRespondent/ Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving 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 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.Ml , M3 and M4 respectively. But, when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MWI wait list under Ex.M10 was prepared on 2-5-92 but 8312

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case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions.of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected 1.Ds. have not completed 240 days , since the Respondent/Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer, sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute, standing orders etc " It is further, argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore, their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40 to 50 years and for no fault of theirs , they find themselves stranded in life midstream . They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

:

10. But , as against this , the learned senior counsel for the Respondent/ Bank contended that the reference made by the Government itself is not maintainable in view ofthe facts and circumstances of the case . The Petitioner in this case and the Petitioners in the connected disputes were not in continuous service . Hence , the question of regular appointment/absorption does not arise at all and their engagement was not authorised . Further, the Petitioners are estopped from making claim as they had accepted the settlements drawn under the provisions of Sections 18 ( 1 ) and 18 (3 ) of the 1.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 Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employworkmen as 'badlies ', casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law . Thus, the Respondent/ Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it . Though clause 2 (e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent/Bank has not produced any document to show how he has arrived at the seniority and till date , it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW1 . Therefore , the termination ofthe Petitioner who was in regular service of the Respondent/ Bank is arbitrary , mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex. M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad, it is neither a 18 (3 ) settlement nor 12(3 ) settlement as claimed by the Respondent/Bank which says onlywith regard to modification of Ex . M1 to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex . M7 and MIl interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further, though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . Ml to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme , In the 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 [ भाग II- खण्ड 3 ( ii) ]

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the settlement was reached with a representative union of which the contesting workmen were members and ifthere was nothing unreasonable or unfair in the terms of the settlement, it must be binding on the contesting workmen also. " He further relied on the rulings reported in AIR 2000 SC469 NATIONAL ENGINEERING INDUSTRIES LTD . Vs. STATE OF RAJASTHAN AND OTHERS wherein the Supreme Court has held that " settlement is arrived at by the free will of the parties and is a pointer to there being good will between them. When there is a dispute that the settlement is not bona fide in nature or that it has been arrived at on account 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 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 is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345 SECRETARY, KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL, KOLLAM wherein the KeralaHigh Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held that " the Tribunal should look into was positioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that he worked as temporary messenger is also incorrect , they were engaged against leave vacancies . The settlement entered into by the Respondent/ Bank and the Federation were bonafide which were the only workable solution and isbinding on the Petitioner. The Petitioner accepted the settlement and accordingly he was wait listed and therefore , the Petitioner is estopped from questioning the settlement directly or indirectly and his claim is liable to be rejected. Furthermore , the said settlements were not questioned by any union and the settlements were bank level settlements and operate throughout the country. Further, he relied on the rulings reported in 1991 ILLJ 323 ASSOCIATED GLASS INDUSTRIES LTD . Vs. INDUSTRIAL TRIBUNAL A.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 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 ILLJ 308 К.С.Р. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely ( i) those arrived at outside the conciliation proceedings under Section 18 ( 1) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3 ) . A settlement of the first category has limited application and binds merely parties to it and settlement ofthe second category made with a recognised majority union has extended application as it will be binding on all workmen ofthe establishment. Even in case of the first category, if [PART II-SEC. 3 ( ii) ] 8314

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the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead 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 ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal hasjurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication . The Labour Court is expected to decide the real nature of disputes between the parties and with that object in view, it should consider the order of reference in a fair and reasonable manner , though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court . " Relying on all these decisions , the representative for the Petitioner argued that though in the reference , it is not mentioned that whether the retrenchment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent/ 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. 1 find some force in the contention of the representative for the Petitioner. Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank , I find the Petitioner is not entitled to question the settlement .

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 ofsteam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently , a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory. " He further relied on the rulings reported in. 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion of their names in the said panel for permanent absorption in the services of the bank . Whatever conditional right they had come to an end with the expiry 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 rúlings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad- hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it. The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad -hoc/ temporary employee who has been continued for one year should be regularised even though (a) no vacancy is available for him which means creation of a vacancy; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; (c) he was not eligible and qualified for the post 14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS Vs. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears 8315 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[ भाग II- खण्ड 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 isnot aware ofhis employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets. But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms of the relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... It has to be clarified that merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance, if the original appointment was not made by following a due process of selection as envisaged by relevant rules . " Further , in CDJ 2006 SC 443 NATIONAL FERTILIZERS 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 cannotbe 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 isconcerned , it is to be noted that question of confirmation or regularisation of an irregularly appointed candidate would arise , if the candidate concerned is appointed in an irregular manner or on ad - hoc basis against an available vacancy which is already sanctioned. But, if the initial entry itself is unauthorised and is not against any sanctioned vacancy , question of regularising the incumbent on such a non -existing vacancy would never survive for consideration and even if such purported regularisation or confirmation is given , it would be an exercise in futility . It would amount to decorating a still born baby. Under these circumstances , there was no occasion to regularise them or to give them valid confirmation . The so called exercise of confirming these employees , therefore, remained a nullity ." Therefore , learned counsel for the Respondent contended that these temporary employees were appointed only due to exigencies and they have not appointed against any regular vacancy and they have only appointed in leave vacancies and therefore , they are not entitled to claim any absorption in the Respondent/Bank. Further , he relied on the rulings reported in AIR 1997 SCC 3657 HIMANSHU KUMAR VIDYARTHI & ORS . Vs. STATE OF BIHAR AND ORS. wherein the Supreme Court has held that "they are temporary employees working on daily wages . Under these circumstances , their disengagement from service cannot be construed to be a retrenchment under the I.D. Act. The concept of retrenchment therefore , cannot be stretched to such an extent as to cover these employees . Since they are only daily wage employees and have no

3855 G1/2007-48 8316

THE GAZETTE OF INDIA : SEPTEMBER 29, 2007/ASVINA 7 , 1929

[PART II-SEC . 3(ii) ]

other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank .

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

LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , isnot a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " itisnot disputed that the appointment of the Respondent was not in sanctioned post . Being a ' State ' within the meaning of Article 12 of the Constitution of India, the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 ofthe Constitution of India would be void in law. " Further , in2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service. " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt. in the wake of prevailing market economy , globálisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore ."

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

Point No. 2 :

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

20. In view of my foregoing findings that the Petitioner is a temporary employee and he is not entitled to be absorbed in regular service or made permanent merely on the strength of such continuance of work, 1 find the Petitioner is not entitled to any relief as claimed by him . No Costs .

21. Thus , the reference is answered accordingly.

K. JAYARAMAN , Presiding Officer

Witnesses Examined :-

For the Petitioner WWISri N. Sengalani 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 MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :--

Ex. No. Date

Description

:

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

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank forimplementation of Ex . M1 .

8317

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

[भाग II- खण्ड 3 ( ii) ]

Date

Ex.No.

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 .

25-03-97

W7 .

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 08-08-88 Xerox copy of the service certificate issued by Manalurpet branch .

10-08-88

W10

Xerox copy of the service certificate issued by Periaseralai branch .

16-08-88

W11

Xerox copy of the service certificate issued by Villupuram branch. 18-08-88

W12

Xerox copy of the service certificate issued by Villupuram branch .

W13 Nii

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

W14 Nil

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

06-03-97

W15

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

06-03-97

W16

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

06-03-97

W17

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

W18 17-03-97 Xerax copy of the service particulars -J. Velmurugan .

W19 26-03-97 Xerox copy of the letter advising selection ofpart time Menial-G. Pandi .

Date

Ex. No.

Description

W20 31-03-97 Xerox copy of the appointment order to Sri G. Pandi .

Feb. 2005

W21

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

W22 13-02-95 Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

W23 09-11-92 Xerox copy of the Head office circular No. 28 regarding Norms for sanction of messenger staff.

W24 09-07-92 Xerox copy ofthe minutes of the Bipartite meeting.

09-07-92

W25

Xerox copy of the settlement between Respondent/Bank and All India State Bank of India Staff Federation for implementation of norms-creation of 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

Xerox copy of the settlement .

16-07-88

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

M7 28-05-91 Xerox copy af 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 Trichy Module.

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

8318

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

नई दिल्ली, 27 अगस्त , 2007

का.आ. 2825.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 175/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था । [सं. एल-12012/554/1998- आईआर ( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 27th August, 2007

S.O. 2825.-In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947 ) , the Central Government hereby publishes the Award (Ref. No.175 / 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 27-8-2007 .

[No. L- 12012/554 / 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. 175/2004

[Principal Labour Court CGID No.272/99 ] [Inthe matter ofthe dispute for adjudication under clause (d) of sub -section ( 1 ) and sub -section 2(A) of Section 10 of the Industrial Disputes Act, 1947 ( 14 of 1947) , between the Management of State Bank of India and their workmen ]

BETWEEN

[PART II-SEC . 3 (ii) ]

:

thedispute on its file as CGID No.272/99 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- cuin-Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as I.D. No. 175/2004.

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

"Whether the demand of the workman Sri P. Kaliamurthy , wait list No. 349 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 P. Kaliamurthy

AND

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

APPEARANCE

Forthe Petitioner : Sri V. S. Ekambaram , Authorised Representative .

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

AWARD

1. The Central Govemment Ministry ofLabour , vide Order No. L- 12012/ 554/98 -IR ( B - I) dated 23-04-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken

:

The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Villupuram branch from 22-09-1982.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 theworkmen under three categories namely A, B and C. Though the classification was unreasonable , the Respondent/Bank brought to the notice of the Petitioner about the interview to be held through advertisements . The Petitioner also submitted his application in the prescribed format through Branch Manager of the Villupuram branch .He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But, they have not informed the result of interview and also with regard to appointment. But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 22-09-1982 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temporary basis in Villupuram 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 8319 [भाग II-खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

1-4-97 . Hence , the Petitioner raised a dispute with regard to his non-employment. Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal, the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/ Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview 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 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 temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/ Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale. Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

Federation which resulted in five settlements dated 17-11-87, 16-07-88,07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18( 3 ) 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. 349 in waitlist of Zonal Office , Trichy. So far 212 wait listed temporary candidates , out of 652 waitlisted temporary employees were permanently appointed by Respondent/Bank. It is false to allege that the Petitioner worked as a temporary messenger . The Petitioner was engaged only in leave vacancies as and when it arose . When the Petitioner having submitted to selection process in terms of settlements drawn as per retrenchment provisions referred to above , cannot turn around and claim appointment . Such of those temporary employees who were appointed were engaged for more number of days and hence , they were appointed . Under the settlement, employees were categorised as A, B , and C. Considering their temporary service and subject to other eligibility criteria, under category (A) the temporary employees who were engaged for 240 days were to be considered and under category ; ( B) the temporary employees who have completed 270 days aggregate temporary service in any continuous block of 36 calendar months and under category ( C) the temporary employees who have completed 30 days aggregate temporary service in any calendar year after 1-7-75 or minimum 70 days aggregate temporary service in any continuous block of 36 calendar months were to be considered . As per clause 7, the length of temporary service was to be considered for seniority in the wait list and it was also agreed that wait list was to lapse in December, 1991 and the cut off date was extended up to 31-3-97 for filling up vacancies which were to arise upto 31-12-94 . The Petitioner has no valid and enforceable right for appointment. The Respondent had implemented the voluntary retirement scheme and even the permanent vacancies stand substantially reduced. There were no regular vacancies available . The peculiar problem was due to the facts that all the aforesaid temporary employees were working in leave vacancies and not in regular permanent vacancies . In terms of aforesaid settlements , out of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listed at 349 , 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 1.D. Act in lieu of provisions of law, retrenchment and implementedby Respondent/Bank . The claim of the Petitioner is not bona fide and made with ulterior motive . The Petitioner concealed the material facts that he was wait listed as per his length of engagement and could not be absorbed as he was 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 8320

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 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 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 :-

(i) "Whether the demand of the Petitioner in Wait List No. 349 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 ?"

[PART II-SEC. 3( ii) ] Point No. 1 :

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners inthe connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis. After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights ofthe workmen concerned and while the matter was pending in Writ Petition No. 542 ( Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/ Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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 8321 [ भाग II- खण्ड 3 (ii) ]

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contended that in 1996 LAB & IC 2248 CENTRAL BANK there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . ' Further , the averment of MWI and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt towriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals . It is further contended on behalf of the Petitioner that as perdeposition of MW1 wait list under Ex . M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories . But , Ex. M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India. Therefore , the Petitioner contended that preparation of Ex. M 10 namely wait list is not in conformity with the instructions of Ex.M2 and non - preparation of separate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore , no wait list was released/published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/ Bank to release the list of successful candidates pursuant to the first advertisement published in ' The Hindu' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority. From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list . Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced 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 .

OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmento whom section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore, the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable. It is further contended that 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. 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 , 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 engagedby theRespondent/Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter of arriving. 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 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 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 8322

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[PART II-SEC . 3 ( ii) ]

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 - calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deeined to be in continuous service of the Respondent/ Bank and they are entitled to the benefits under the provisions of I.D. Act . It is further contended on behalf of the Petitioner that though some of the Petitioners in the connected 1.Ds. have not completed 240 days , since the Respondent/ Bank has not taken into consideration and not included the Sundays and paid holidays as days on which the Petitioners have actually worked and hence , they have also completed 240 days in a period of 12 calendar months . He also relied on the rulings reported in 1985 II LLJ 539 WORKMEN OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION VS. MANAGEMENT OF AMERICAN EXPRESS INTERNATIONAL BANKING CORPORATION wherein the Supreme Court has held that " the expression 'actually worked under the employer ' cannot mean that those days only when the workmen worked with hammer , sickle or pen but must necessarily comprehend all those days during which they were in the employment of the employer and for which he had been paid wages either under express or implied contract of service or by compulsion of statute , standing orders etc. " It is further , argued that call letters produced by the Petitioner will clearly prove that the Respondent/ Bank has conducted the interview and selected the temporary employees who have reported to have submitted their application for absorption as per the bank's circular and therefore , their retrenchment is illegal . In all these cases , the Petitioners were in employment as sub - staff in early 1980s but were denied further engagement on account of settlements/ lapsing of wait lists and out of these Petitioners some of them have completed 240 days and more in a continuous period of 12 calendar months and they are in age group of 40to50 years and for no fault of theirs , they find themselves stranded in life midstream. They have also not gainfully employed. In such circumstances , this Tribunal has to pass an award in their favour .

Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further, the representative ofthe Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employ workmen as ' badlies ' , casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal. " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law . Thus, the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement, but in utter violation and in breach of it . Though clause 2( e) ofEx . M4 states that candidates found suitable for permanent appointment wili 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 onlywith regard to modification of Ex . Ml to M4 made in terms of Ex . M6 . Though the Respondent/ Bank produced Ex . M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased tohave any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further , though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex. Ml to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme , In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

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 8323

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[ भाग II- खण्ड 3 (ii) ]

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 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 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 appointinent thereupon as temporary messenger is justified ? ' The Petitioner contended that the retrenchment made by the Respondent/Bank is not valid and he has to be reinstated in service with full back wages etc. Hence , the Petitioner's contention against the reference made by the Government is not valid . Further, in this case , the Court has to see whether the restoration of wait list can be made as contended by the Petitioner and not reinstatement as alleged by the Petitioner in the Claim Statement .

12.But, as against this on behalf of the Petitioner it is contended that mere wording of reference is not decisive in the matter of tenability of a reference and he relied on the rulings reported in 1998 LAB IC 345, SECRETARY , KOLLAM JILLA HOTEL AND SHOP WORKERS UNION Vs. INDUSTRIAL TRIBUNAL , KOLLAM wherein the Kerala High Court has held that " mere wording ofreference is not decisive in the matter of tenability of a reference . Even though the Tribunal cannot go beyond the order of reference, ifpoints 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 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 elaim of 11 workmen and the workmen resigned from the job and received terminal benefits , but the workmen raised a plea before the Tribunal that they did not resign voluntarily . But the Andhra Pradesh High Court has held that " in the absence of plea that the settlement reached in the course of conciliation is vitiated by fraud , misrepresentation or coercion, the settlement is binding on the workmen . " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority unionwill be binding on all workmen ofthe establishment , even those who belong to the minority union which had objected to the same . To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement . " It further held that " there may be exceptional cases, where there may be allegations ofmala fides,fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration. " Learned counsel for the Respondent further relied onthe rulings reported in 1997 I LLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 (1 ) of the I.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18 (3). A settlement of the first category has limited application andbinds merely parties to it and settlement ofthe second category made with a recognised majority union has extended application as it will be binding on all workmen ofthe establishment. Even in case of the first category, if

3855 GI/2007-49 8324

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[PART II-SEC. 3 ( ii) ] 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/ 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, 1 find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt. service in an existing or a future vacancy . " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which, the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory ." He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank . Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion oftheir names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus, misconceived and therefore , the learned Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively . " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of theRespondent/Bank in preparing the wait list, it carinot be said that preparation of wait list was made with mala fide motive . Under such circumstances , after the expiry of the date namely 31-3-1997 , the Petitioner cannot plead for restoration of the wait list and he cannot pray for reinstatement as alleged by him . Further, he relied on the rulings reported in 1992 LAB IC 2168 STATE OF HARYANA AND ORS . Vs. PIARA SINGH AND OTHERS wherein the Supreme Court has held that " now coming to the direction that all those ad -hoc temporary employees who have continued for more than a year should be regularised , we find it difficult to sustain it . The direction has been given without reference to the existence of a vacancy. The direction in effect means that every ad - hoc/ temporary employee who has been continued for one year should be regularised even though ( a) no vacancy is available for him which means creation of a vacancy ; (b) he was not sponsored by Employment Exchange nor was he appointed in pursuance of a notification calling for applications which means he had entered by a back door; ( c) he was not eligible and qualified for the post [ भाग II- खण्ड 3 ( ii ) ]

8325 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

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 .

atthe time of his appointment ; (d) his record of service since his appointment is not satisfactory. These are the additional problems indicated by us in para 12 which would arise from giving of such blanket orders . None of the decisions relied upon by the High Court justify such wholesale , unconditional orders . Moreover , from the mere continuation of an ad - hoc employee for one year, it cannot be presumed that there is need for regular post. Such a presumption may bejustified only when such continuance extends to several years . Further , there can be no rule of thumb in such matters . Conditions and circumstances of one unit may not be the same as of the other . Just because in one case , a direction was given to regularise employees who have put in one year's'service as far as possible and subject to fulfilling the qualifications , it cannot be held that in each and every case , such a direction must follow irrespective of and without taking into account the other relevant circumstances and considerations . The relief must be moulded in each case having regard to all the relevant facts and circumstances of that case . It cannot be a mechanical act but ajudicious one . From this , the impugned directions must be held to be totally untenable and unsustainable. " Thus , the Supreme Court set aside the orders 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 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 right to the posts ,

15. Leamed Senior Advocate further argued that even inrecent 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 of his appointment, he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Courtto prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad- hoc employees who by the very nature of their appointment , do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment . He accepts the employment with open eyes . It may be true that he is not in a position to bargain-not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone, it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode of public appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms ofthe relevant rules and after a proper competition among qualified persons , the same would not confer any right on the appointee ...... 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 appointinent was not made by following a due process of selection as envisaged by relevant rules ." Further, in CDJ 2006 SC 143 NATIONAL FERTILIZERS 8326

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7 , 1929

LTD. AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore , is not a mode of appointment and if appointment is made without following the rules , the same being a nullity, the questionof confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL, SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that " itis not disputed that the appointment of the Respondent was not in sanctioned post. Being a ' State ' within the meaning of Article 12 of the Constitution of India , the Appellant for the purpose of recruiting its employees was bound to follow the recruitment rules . Any recruitment made in violation of such rules as also in violation of constitutional scheme enshrined under Articles 14 and 16 oftheConstitution of India would be void in law . " Further , in 2006 2 LLN 89 MADHYA PRADESH STATE AGRO INDUSTRIES DEVELOPMENT CORPORATION VS. S.C. PANDEY wherein the Supreme Court has held that " only because an employee had worked for more than 240 days of service by that itself would not confer any legal right upon him to be regularised in service . " The Supreme Court also held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the 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)] other inducements . Under such circumstances , I find the Petitioners cannot now question the settlements at this stage and since they are only temporary employees and since it is not shown before this Tribunal that the Respondent/Bank has got sanctioned posts for temporary employees to be absorbed , I find the Petitioners cannot claim for reinstatement or regularisation in services of the Respondent /Bank.

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

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

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 .

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

K. JAYARAMAN , Presiding Officer Witnesses Examined:-

Forthe Petitioner

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

WW1 Sri P. Kaliamurthy WW2 Sri V. S. Ekambaram For the Respondent MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :-

Ex. No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation ofEx . M1 .

8327 भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

[भाग II- खण्ड 3 (ii ) ]

Ex. No. Date

Description

Ex. No. Date

Description

W21 17-03-97

24-04-91

W3

Xerox copy of the service particulars - J.Velmurugan.

26-03-97

W22

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

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

W4 01-05-91

31-03-97

W23

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

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

W5 20-08-91

Feb. 2005

W24

Хегоx copy ofthe advertisement in The Hindu extending period of qualifying service to daily wagers .

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

W6 15-03-97

13-02-95

W25

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

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

W7 25-03-97

09-11-92

W26

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

09-07-92

W27

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

Xerox copy of the minutes ofthe Bipartite meeting.

W8 Nil

09-07-92

W28

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

W9 15-12-83

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

Xerox copy of the service certificate issued by Villupuram branch.

07-02-06

W29

09-10-84

W10

Xerox copy of the service certificate issued by Villupuram branch .

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

W11 Nil

31-12-85

Xerox copy of the service certificate issued by Villupuram branch..

W30

W12 Nil

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

Xerox copy of the service certificate issued by Villupuram branch .

For the Respondent/ Management :-

W13 Nil

Ex. No. Date

Description

Xerox copy of the service certificate issued by Villupuram branch.

MI

W14 Nil

Xerox copy of the settlement .

17-11-87

Xerox copy of the service certificate issued by Villupuram branch.

M2

Xerox copy of the settlement .

16-07-88

W15 Nil

M3

Xerox copy of the settlement .

27-10-88

Xerox copy of the service certificate issued by Villupuram branch .

M4 9-01-91 Xerox copy of the settlement.

W16 Nil

M5

Xerox copy of the settlement.

30-07-96

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

W17 Nil

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

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

M8 15-05-98

06-03-97

W18

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

M9

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

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

06-03-97

W19

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

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

06-03-97

25-10-99

W20

M11

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

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

8328

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ ASVINA 7, 1929

[PART 11- SEC . 3( ii) ] नई दिल्ली , 27 अगस्त, 2007

Labour Court , Chennai and the said Labour Court has taken the dispute on its file as CGID No. 159/99 and issued notices to both parties . Both sides entered appearance and filed their claim statement and Counter Statement respectively . After the constitution of this- CGIT- cum-Labour Court , the said dispute has been transferred to this Tribunal for adjudication and this Tribunal has numbered it as 1.D. No. 151/2004.

का.आ. 2826. 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 151/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था ।

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

[सं. एल -12012/284/1998 - आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी

New Delhi , the 27th August , 2007

"Whether the demand of the workman Sri R. Kamaraj , wait list No. 635 for restoring the wait listof temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If 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. 2826. In pursuance of Section 17 of the Industrial Disputes Act, 1947 ( 14 of 1947) , the Central Government hereby publishes the Award ( Ref . No.151 / 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 27-8-2007 .

[No. L- 12012/284/ 1998 - IR ( B - I ) ] AJAY KUMAR , Desk Officer

ANNEXURE

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

Wednesday, the 3 Ist January , 2007

PRESENT: Shri K. Jayaraman ,

Presiding Officer

Industrial Dispute No. 151/2004 [Principal Labour Court CGID No.159/99]

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

BETWEEN

Sri R. Kamaraj

: I Party/ Petitioner

AND

The Assistant General Manager ,: 11 Party/Management State Bank of India, Region - 1 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 ofLabour , vide Order No. L - 12012/284/ 98 - IR (B - I ) dated 11-02-1999 has referred this dispute earlier to the Tamil Nadu Principal

The Petitioner was sponsoredby Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Palakarai ( Trichy ) branch from 23-06-1987 . The Petitioner was orally informed that his services were no more required. The non - employinent 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 ofthe Palakkarai branch . He was called for an interview by a Cominittee 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 23-06-1987 , the Petitioner has been working as a temporary messenger and some times performing work in other branches also . While working on temprorary basis in Trichy 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 froin 8329 [ भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

1-4-97. Hence, the Petitioner raised a dispute with regard to his non -employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner , he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/Bank , it engaged the Petitioner only in temporary services after the settlement . The Petitioner was not aware of settlement by which his services and number of days worked by him after interview do not merit consideration . The Petitioner was not a party to the settlement mentioned by the Respondent/Bank before the conciliation officer . Therefore , the Respondent's action in not absorbing him in regular service is unjust and illegal . Further , the settlements are repugnant to Sections 25G & 25H of the I.D. Act . The termination of the Petitioner is against the provisions of para 522( 4 ) of Sastry Award. Even though the settlement speaks about three categories only a single wait list has been prepared and the respondent/ Bank has been regularising according to their whims and fancies . The Respondent/Bank has also not observed the instructions regarding grant of increments , leave, medical benefits etc. to the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing himto work under assumed name or by both which amounts to unfair labour practice. The wait list suffers serious infirmities and it is not based on ' strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

Federation which resulted in five settlements dated 17-11-87, 16-07-88 , 07-10-88,9-1-91 and 30-7-96. The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 ( 3 ) ofI.D. Act . In terms thereof, the Petitioner was considered for permanent appointment as per his eligibility along with similarly placed other temporary employees and the Petitioner was wait listed as candidate No. 635 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 31-3-97 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 635 , 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 settlementdrawn 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/ 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 8330

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007/ASVINA 7, 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 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. 635 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?"

[PART II-SEC . 3 ( ii) ] Point No. 1 :

8. In this case , on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms ofthe relevant guidelines/ circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years , the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice. Since the Respondent/ Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concemed and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M 1. The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they furtherprayed for reinstatement with back wages and other attendant benefits .

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 8331 [ भाग II-खण्ड 3( ii) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7, 1929

there is no pleading in the Counter Statement with regard to this wait list . Further the Hon'ble High Court has held in its order dated 23-7-99 in W.P.No.7872 of 1991 , which is marked as an exhibit , in which it is stated that ' it is clear that the 1987 settlement was concerned with the temporary class IV employees who were paid scale wages as per Bipartite Settlement while the 1988 settlement dealt with daily wager in Class IV category who were paid wages daily on mutual agreement basis . In such circumstances , as rightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated by the Respondent/Bank by combing equals with unequals. It is further contended on behalf of the Petitioner that as per deposition of MW1 wait list under Ex.M10 comprises of both messengerial and non - messengerial candidates . While the temporary employees were appointed after due process of selection and were paid wages on the basis of industrywise settlement , it is not so in the case of casuals . Therefore , both belongs to two different and distinct categories. But , Ex . M3 provides for the same norms to the casuals as in the case of temporary employees in the matter of absorption . Therefore , it is violative of Articles 14 & 16 of Constitution of India . Therefore , the Petitioner contended that preparation of Ex . M 10 namely wait list is not in conformity with the instructions of Ex.M2 and non - preparation of separate panels amounts to violation of circular. Secondly , it has not beenprepared as per instructions in Ex. W2 circular regarding projected vacancies for the period from 1987 to 1994. Furthermore, no wait list was released / published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent /Bank to release the list of successful candidates pursuant to the first advertisement published in ' The Hindu ' dated 1-8-88. Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex . M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent /Bank produced the wait list Ex. M10 before this Tribunal marking it as a confidential document . It is further contended on behalf of the Petitioner that though the Respondent/ Bank has alleged that these petitioners were engaged in leave vacancy, they have not been told at the time of initial appointment that their appointment was in leave vacancy . Further , even before or after the settlement on absorption of temporary employees , the expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 (oo) ofthe I.D. Act, 1947.

contended that in 1996 LAB & IC2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V -A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmen to whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that 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 MWI and MW2 and their testimonies during the cross- examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further , Clause 1 of Ex . Ml deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A , B & C' is quite opposed to the doctrine of ' last come- first go ' or ' first come- last go ' and therefore , the categorization in Clause 1 isillegal . Clause 1 (a) of Ex . Ml provides an opportunity to persons who were engaged on casual basis and allowed to work in leave /casual vacancies of messengers , farashes , cash coolies, water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , copy of which is marked as Ex. W8 . Further , the appointment of daily wage basis for regular messengerial jobs etc. are strictly prohibited as per bank's circulars /instructions . In such circumstances , the absorption of casuals along with the eligible categories is not valid . Therefore , these persons who were engaged by the Respondent/ Bank on casual basis should not be given permanent appointment in the bank service . Those casuals were given more beneficial treatment in the matter ofarriving at qualifying service for interview and selection. But , temporary employees have not been informed about this amendment which includes casuals affecting their interest and chance . Further , as per instructions in Ex . W2 four types of waiting lists have to be prepared . But the Respondent/Bank has alleged to have prepared only one wait list for each module as per Ex.M 10 in this case . Those candidates under Ex . M10 were found suitable for appointment as messengers and sweepers . Even MW 1 is unable to say as to when the wait list Ex.M10 was prepared, but it is mentioned in Ex . M10 that it was prepared based on the settlement dated 17-11-87 , 27-10-88 and 9-1-91 which are marked as Ex . MI , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there, but he has not produced any document in support of the so called non- inclusion except his bald statement . Further , according to MW1 wait list under Ex . M10 was prepared on 2-5-92 but

3855 GI /2007-50 8332

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[PART II-SEC. 3 (ii)]

case . The Petitioners have completed the service of 240 days and more in a continuous period of 12 calendar months as enshrined under Sections 25B and 25F of the Industrial Disputes Act , therefore , their retrenchment from service is illegal and against the mandatory provisions of Section 25 and therefore , they are deemed to be in continuous service of the Respondent/Bank and they are entitled to the benefits under the provisions of I.D. Act . It 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 .

Though the Petitioner's work in the Respondent/Bank is continuous and though the Petitioner has performed the duties continuously which is still in existence , the categorisation as such is not valid and the provisions of Sastry Award are also violated . Further , the representative of the Petitioner relied on the rulings reported in 1985 4 SCC 201 H.D. SINGH Vs. RESERVE BANK OF INDIA AND OTHERS wherein the Supreme Court has held that "to employworkmen as ' badlies ', casuals or temporaries and to continue them as such for many years with the object of depriving them of the status and privileges of permanent workmen is illegal . " Learned representative further contended that Ex.M 10 wait list has not been prepared in accordance with principle of seniority in the legal sense , since the selected candidates with longest service should have priority over those who joined the service later and therefore , the wait list under Ex . M10 which has been drawn up is contrary to law and also bad in law. Thus , the Respondent/Bank has not acted in accordance with the law and the spirit of the settlement , but in utter violation and in breach of it . Though clause 2 (e) of Ex . M4 states that candidates found suitable for permanent appointment will be offered appointment against existing/ future vacancy anywhere in module or circle and in case , a candidate fails to accept the offer of appointment or posting within the prescribed period, he will be deemed to have refused it and the name shall stand deleted from the respective panel and he shall have no further claim for being considered for permanent appointment in the bank . The Respondent /Bank has not produced any document to show how he has arrived at the seniority and till date, it is a mystery as to who that senior was and there is no documentary evidence in support of the averment and also for the averment of MW 1. Therefore , the termination of the Petitioner who was in regular service of the Respondent/ Bank is arbitrary, mala fide and illegal and the Respondent/ Bank has not acted in accordance with the terms of settlement on absorption of temporary employees . Though the Respondent/Bank has produced Ex . M6 which alleged to be a copy of minutes of conciliation proceedings dated 9-6-75 before Regional Labour Commissioner ( Central ) , Hyderabad , it is neither a 18 (3 ) settlement nor 12( 3 ) settlement as claimed by the Respondent/ Bank which says only with regard to modification of Ex. M1 to M4 made in terms of Ex . M6 . Though the Respondent/Bank produced Ex. M7 and M11 interim orders passed by High Court of Madras in WMP No. 11932/91 in W.P. No. 7872/91 ceased to have any relevance when the main writ has been disposed of in the year 1999 and therefore , they do not have any bearing in the case of the Petitioner . Further, though the Respondent/Management has examined two witnesses , the deposition of management witnesses during the cross- examination had become apparent that they have no personal knowledge about the settlements which are marked as Ex . M1 to M5 . Above all , though the Respondent/Bank has referred to voluntary retirement scheme , In the Respondent/Bank it was implemented only in the year 2001 and it constitutes post reference period and hence evidence ofRespondent/Bank has no application to the Petitioner's

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 length of his engagement and could not be absorbed as he 8333 [ भाग II- खण्ड 3 ( ii ) ]

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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 offraud , misrepresentation or concealment offacts 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 ofthe 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 ofreference is not decisive in the matter of tenability of a reference. Even though the Tribunal cannot go beyond the order of reference , ifpoints of difference are discernible from the material before it, it has only on duty and that is to decide the points on merits and not to find out some technical defects in the wording of reference , subjecting the poor workman to hardship involved in moving the machinery again. " It further held at the ridunat should look waspositioned down in the seniority . The Respondent/ Bank was engaging temporary employees due to business exigency for the performance of duties as messenger . Further , the allegation that he was sponsored by Employment Exchange is incorrect and the allegation that 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 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, misrepresentation or coercion, the settlement is binding on the workmen. " Learned counsel for the Respondent further relied on the rulings reported in 1997 II LLJ 1189 ASHOK AND OTHERS Vs. MAHARASHTRA STATE TRANSPORT CORPORATION AND OTHERS wherein the Division Bench of the Bombay High Court has held that "therefore a settlement arrived at in the course of the conciliation proceedings with a recognised majority union will be binding on all workmen of the establishment, even those who belong to the minority union which had objected to the same. To that extent, it departs from the ordinary law ofcontracts , the object obviously is to uphold the sanctity of settlements reached with the active assistance of the Conciliation Officer and to discourage an individual employee or a minority unionfrom scuttling the settlement . " It further held that "there may be exceptional cases , where there may be allegations ofmala fides, fraud or even corruption or other inducements . But, in the absence of such allegations , a settlement in the course of collective bargaining is entitled to due weight and consideration . " Learned counsel for the Respondent further relied on the rulings reported in 1997 ILLJ 308 K.C.P. LTD . Vs. PRESIDING OFFICER AND OTHERS wherein the Supreme Court has held that " settlements are divided into two categories namely (i) those arrived at outside the conciliation proceedings under Section 18 (1) of the 1.D. Act and (ii) those arrived at in the course of conciliation proceedings under Section 18(3) . A settlement of the first category has limited application andbinds merely parties to it and settlement ofthe second category made with a recognised majority union has extended application as it will be binding on all workmen ofthe establishment. Even in case ofthe first category, if 8334

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[PART II-SEC . 3 (ii)] into the pleading and find out the exact nature of pleading of the Petitioner to find out the exact nature of dispute instead of refusing to answer the reference on merits ." Further, he argued that the Tribunal has got power to go into the question whether the Petitioner is to be reinstated in service or not for which he relied on the rulings reported in 1998 LAB IC 1664 VAN SAG NATHAN ORIENT PAPER MILLS VS. INDUSTRIAL TRIBUNAL & ORS . wherein the Madhya Pradesh High Court has held that "the Tribunal cannot go behind the terms of reference , but that does not mean that it cannot look into the pleadings of parties ." He also relied on the rulings reported in 1998 LAB IC 1507 A. SAMBANTHAN Vs. PRESIDING OFFICER , LABOUR COURT , MADRAS , wherein it has been held that " it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner , but should consider the order ofreference in a fair and reasonable manner . " He also argued that in Express Newspapers P. Ltd. case reported in AIR 1993 SC 569 the Supreme Court has held that " the Tribunal has jurisdiction to consider all incidental matters also and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is expected to decide the real nature of 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 retrenchiment is valid or not , from the pleadings it is clear that the Petitioners have been retrenched from the Respondent / Bank and therefore , this Tribunal can look into the pleadings of the Petitioners and can decide whether the Petitioner is entitled to be reinstated in service as alleged by him and whether he is entitled to the back wages as alleged by him. Therefore , the argument advanced on the side of the Respondent that it is beyond the scope of reference is without any substance .

13. I find some force in the contention of the representative for the Petitioner . Therefore , I find this Tribunal is entitled to go into the question whether the relief prayed for by the Petitioner can be given to him or not? But , I find that the settlement was validly entered into between the Respondent/ Bank and Federation and since it is not questioned by any of the unions of the Respondent/ Bank , I find the Petitioner is not entitled to question the settlement .

14. Then the learned counsel for the Respondent contended that since the Petitioner mentioned that he has been kept in the wait list and the time of wait list has been exhausted, now the Petitioner cannot question that he should be reinstated in service and he relied on the rulings reported in 1996 3 SCC 139 UNION OF INDIA AND OTHERS VS. K.V.VIJEESH wherein the Supreme Court has held that " the only question which falls for determination in this appeal is whether a candidate whose name appears

in the select list on the basis of competitive examination acquires a right of appointment in Govt . service in an existing or a future vacancy. " In that case , pruning of select list on reduction in number of vacancies was made in view of the impending absorption of steam surplus staff and a policy decision has been taken to reduce the number ofvacancies and consequently, a certain number ofbottom persons were removed from the select list and the remaining selectees were given appointments according to their comparative merits . In which , the Supreme Court has held that " in such circumstances , denial of appointment to the persons removed from the select list is not arbitrary and discriminatory . " He further relied on the rulings reported in 1997 6 SCC 584 SYNDICATE BANK & ORS . Vs. SHANKAR PAUL AND OTHERS wherein the Supreme Court has held that " by its letter dated 7-2-87 the bank informed the Respondents that the panel was valid for one year only and that inclusion of their names in the panel was not to confer on them any right to seek permanent appointment in the services of the bank. Considering the object with which the panel was prepared and the fact that it was a yearly panel expiring on 6-2-98 , we are of the opinion that the Respondents did not get any right because of inclusion oftheir names in the said panel for permanent absorption in the services of the bank. Whatever conditional right they had come to an end with the expiry of the panel . The claim of the Respondents as contained in the W.P. was thus , misconceived and therefore , the leamed Single Judge and the Division Bench , when it first decided the appeal were right in dismissing the Writ Petition and the appeal respectively. " He further relied on the rulings reported in 1991 3 SCC 47 SHANKARSAN DASH Vs. UNION OF INDIA wherein the Supreme Court has held that " candidates included in merit list has no indefeasible right to appointment even if a vacancy exists " and relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has no right to question the wait list and since there is no mala fide on the part of the Respondent/Bank in preparing the wait list , it cannot 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 sponsoredby 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 8335 [ भाग 11- खण्ड 3( ii) ]

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at the time of his appointment ; (d) his record of service 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 .

15. Learned Senior Advocate further argued that even in recent decision reported in 2006 4 SCC 1 SECRETARY , STATE OF KARNATAKA VS. UMA DEVI , the Supreme Court has held that " merely because a temporary employee or a casual wage worker is continued for a time beyond the term of his appointment , he would not be entitled to be absorbed in regular service or made permanent merely on the strength of such continuance , if the original appointment was not made by following a due process of selection as envisaged by relevant rules . It is not open to the Court to prevent regular recruitment at the instance of temporary employees whose period of employment has come to an end or of ad -hoc employees who by the very nature of their appointment , do not acquire any right . " Further, it has also held that " it is not as if, the person who accepts an engagement either temporary or casual in nature is not aware of his employment. He accepts the employment with open eyes . It may be true that he is not in a position to bargain not at arms length since he might have been searching for some employment so as to eke out his livelihood and accepts whatever he gets . But on that ground alone , it would not be appropriate to jettison the constitutional scheme of appointment , perpetuate illegalities and to take the view that a person who has temporarily or casually got employed should be directed to be continued permanently . By doing so , it will be creating another mode ofpublic appointment which is not permissible . " Further , the Supreme Court while laying down the law, has clearly held that " unless the appointment is in terms 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 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 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 appointinent 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, 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 circuinstances , 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 , [PART II-SEC . 3 ( ii) ] 8336

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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 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 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 .

LTD . AND OTHERS VS. SOMVIR SINGH , wherein the Supreme Court has held that " regularisation furthermore, isnot a mode of appointment and if appointment is made without following the rules , the same being a nullity, the question of confirmation of an employee upon the expiry ofpurported period of probation would not arise . " Further , in CDJ 2006 SC 395 MUNICIPAL COUNCIL , SUJANPUR Vs. SURINDER KUMAR, the Supreme Court has held that "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 aiso held that " the changes brought about by the subsequent decisions of this court probably having regard to the changes in the policy decisions of the Govt . in the wake of prevailing market economy , globalisation , privatisation and outsourcing is evident , in view of the settled legal position , as noticed hereinbefore . "

Point No. 2 :

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

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

21. Thus , the reference is answered accordingly .

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

K. JAYARAMAN, Presiding Officer

Witnesses Examined : --

For the Petitioner

16. Relying on all these decisions , learned counsel for the Respondent contended that since the Petitioner has not been appointed for regular post nor has he been appointed in regular vacancy or sanctioned post, the Petitioner is not entitled to claim regularisation ofhis service. Further, when they have not been questioned the five settlements entered into between the Respondent/Bank and Federation and since they have not questioned the wait list 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.

WWI Sri R. Kamaraj WW2 Sri V. S. Ekambaram

For the Respondent MWI Sri C. Mariappan MW2 Sri T.L. Selvaraj

Documents Marked :---

Ex. No. Date

Description

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

W2 20-04-88 Xerox copy of the administrative guidelines issued by Respondent/Bank for implementation of Ex . M1 .

17. 1 find much force in the contention of the learned counsel for the Respondent. Though in the Claim Statement, the Petitioners have made so many allegations with regard to preparation of wait list and also settlements entered into between the Respondent/Bank and Federation, at the time of reference , they have not questioned the settlement nor the number allotted to each individual in the 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 [ भाग II- खण्ड 3 ( ii) ]

8337

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7 , 1929

Ex. No. Date

Ex. No. Date

Description

Description

W3 24-04-91

W20 31-03-97 Xerox copy of the appointment order to SriG. Pandi .

W21 Feb. 2005

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

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

W22 13-02-95

W5 20-08-91

Xerox copy of the Madurai Module circular letter about Engaging temporary employees from the panel of wait list .

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

W23 09-11-92

W6 15-03-97

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

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

W7

W24 09-07-92

25-03-97

Xerox copy of the minutes of the Bipartite meeting.

W25 09-07-92

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

W8 Nil

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

W26 07-02-06

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

W9 13-08-6 Xerox copy of the service certificate issued by Palakkarai branch .

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

W10 17-02-92

W27 31-12-85

Xerox copy of the service certificate issued by Tiruchirapalli branch .

1993

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

W11

Xerox copy of the service certificate issued by Trichy branch .

For the Respondent/ Management : -

Ex. No. Date

Description

W12 05-02-94 Xerox copy of the service certificate issued by Trichy branch .

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

W13 Nil

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

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

M4

Xerox copy of the administrative guidelines in reference book on staff matters issuedby respondent/ bank regarding recruitment to subordinate cadre & service conditions .

9-01-91 Xerox copy of the settlement.

W14 Nil

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

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

M6 09-06-95

W15 06-03-97

Xerox copy of the minutes of conciliation proceedings .

M7 28-05-91

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

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

W16 06-03-97

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

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

M9 10-07-99

W17 06-03-97

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

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

M10 Nil

Xerox copy of the wait list of Trichy Module .

W18 17-03-97 Xerox copy of the service particulars -J. Velmurugan .

M11 25-10-99

W19 26-03-97

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

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

8338

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 1929

नई दिल्ली , 27 अगस्त, 2007

का.आ. 2827.-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 131/2004 ) को प्रकाशित करती है , जो केन्द्रीय सरकार को 27-8-2007 को प्राप्त हुआ था । [सं. एल-12012/420/1998- आईआर( बी-1 ) ] अजय कुमार , डेस्क अधिकारी New Delhi , the 27th August , 2007

S.O. 2827. In pursuance of Section 17 of the Industrial Disputes Act , 1947 ( 14 of 1947) , the Central Government hereby publishes the Award (Ref. No. 131 / 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 27-8-2007.

[No. L- 12012/420/ 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. 131/2004

[Principal Labour Court CGID No. 129/99] [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 P. Balasubramanian

[PART II-SEC. 3 (ii) ] the dispute on its file as CGID No. 129/99 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. 131/2004 .

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

"Whether the demand of the workman Sri P. Balasubramanian , wait list No. 539 for restoring the wait list of temporary messengers in the establishment of State Bank of India and consequential appointment thereupon as temporary messenger is justified ? If so , to what relief the said workman is entitled ?"

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

: 1 Party/Petitioner

AND

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

APPEARANCE

For the Petitioner

: Sri V. S. Ekambaram, Authorised Representative .

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

AWARD

1. The Central Government Ministry of Labour, vide Order No. L- 12012/420 /98 - IR (B - I) dated 11-02-1999 has referred this dispute earlier to the Tamil Nadu Principal Labour Court, Chennai and the said Labour Court has taken The Petitioner was sponsored by Employment Exchange for the post of sub staff in Class IV cadre in State Bank of India and he was given appointment as messenger after an interview and medical examination . He was appointed on temporary basis at Karur Siruthozhil branch from 23-08-1985 .The Petitioner was orally informed that his services were no more required . The non - employment of the Petitioner and others became subject matter before Supreme Court in the form of Writ Petition filed by State Bank Employees ' Union in Writ Petition No. 542/87 which was taken up by the Supreme Court . The Respondent/ Bank , in addition to its counter , filed a copy of settlement under Section 18 ( 1 ) reached between management of State Bank of India and All India State Bank of India Staff Federation and the settlement is with regard to absorption of Class IV temporary workmen who were denied employment after 1985-86 were classified in the settlement was under consideration once again and they classified the workmen under three categories namely A, B and C. Though the classification 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 Siruthozhil branch . He was called for an interview by a Committee appointed by Respondent/Bank in this regard . But, they have not informed the result of interview and also with regard to appointment . But, the Petitioner was informed orally to join at the branch where he initially worked as a class IV employee . From 23-08-1985 , the Petitioner has been working as a temporary messenger and some time performing work in other branches also . While working on temprorary basis in Siruthozhil 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 his services are not required any more and he need not attend the office from 8339 [ भाग 11 - खण्ड 3 ( ii ) ]

भारत का राजपत्र : सितम्बर 29, 2007/आश्विन 7 , 1929

1-4-97 . Hence , the Petitioner raised a dispute with regard to his non -employment . Since the conciliation ended in failure, the matter was referred to this Tribunal for adjudication . Though reference was sent to this Tribunal , the reference framed did not satisfy the grievance of the Petitioner, he has made a fresh representation to Govt . to reconsider the reference and the Petitioner requested the Respondent/ Bank to continue to engage him in service as obtained prior to 31-3-97 and to regularise him in service in due course . The Respondent/Bank took up an unreasonable stand that the service and the number of days worked by Petitioner were treated as of no consequence , since according to the Respondent/ Bank , it engaged the Petitioner only in temporary services after the settlement. The Petitioner was not aware of settlement by which his services and number of days worked by him after interview 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 whiins and fancies . The Respondent/Bank has also not abserved the instructions regarding grant of increments, leave, medical benefits etc. ta the temporary workmen which amounts to violation of relevant provisions of circular . The Respondent/Bank engaged the Petitioner and extracted the same work either by payment of petty cash or by directing him to work under assumed name or by both which amounts to unfair labour practice . The wait list suffers serious infirmities and it is not based on strict seniority and without any rationale . Hence , for all these reasons the Petitioner prays to grant relief of regular employment in Respondent/ Bank with all attendant benefits .

:

Federation which resulted in five settlements dated 17-11-87 , 16-07-88 , 07-10-88 , 9-1-91 and 30-7-96 . The said settlements became subject matter of conciliation proceedings and minutes were drawn under Section 18 (3 ) 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. 539 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 31-3-97 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 perinanent vacancies . In terms of aforesaid settlements , out of652 wait listed candidates , 212 temporary employees were appointed and since the Petitioner was wait listedat 539 , he was not appointed . The said settlements were bona fide which were the only workable solution and is binding on the Petitioner . The Petitioner is estopped from questioning the settlements directly or indirectly and his claim is liable to be rejected . Further , the said settlements were not questioned by any union so far and the settlements of bank level settlements and operated throughout the country . The Tamil Nadu Industrial Establishment ( Conferment of Permanent Status to Workmen ) Act , 1981 does not apply to Respondent/Bank and this Tribunal has no jurisdiction to entertain such plea. It is not correctto say that documents and identity of Petitioner was verified before the Petitioner was engaged . It is also not correct to say that the Petitioner was 4. As against this , the Respondent in its Counter Statement alleged that reference made by the Govt . for adjudication by this Tribunal itself is not maintainable . The Petitioner was not in continuous service . Hence , the question of regular appointment/ absorption does not arise . The engagement of Petitioner was not authorised . The Petitioner is estopped from making claim as per Claim Statement . The settlementdrawn under provisions of Sections 18 ( 1 ) and 18 ( 3 ) of 1.1). 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 inaterial facts that he was wait listed as per his length of engagement and could notbe absorbed as he was positioned down in seniority. Due to the husiness 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

3855-GI/2007-51 8340

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 /ASVINA 7 , 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 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 ofthePetitioner. Hence , the Petitioner prays that an award may be passed in his favour .

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

(i) "Whether the demand of the Petitioner in Wait List No. 539 for restoring the wait list of temporary messengers in the Respondent/ Bank and consequential appointment thereupon as temporary messenger is justified ?"

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

[PART 11- SEC . 3( ii) ] Point No. 1 :

8. In this case, on behalf of the Petitioner it is contended that the Petitioner in this case and the Petitioners in the connected industrial disputes have been sponsored by Employment Exchange and they having been called for interview and having been selected and wait listed in terms of the relevant guidelines/ circulars of the Respondent/Bank in permanent vacancies in subordinate cadre on temporary basis . After engaging them intermittently for some years, the Petitioner in this case and other Petitioners in the connected disputes were terminated without any notice . Since the Respondent/Bank terminated several temporary employees in the year 1985 , the State Bank Employees ' Union had filed a Writ Petition before the Supreme Court to protect the legal and constitutional rights of the workmen concerned and while the matter was pending in Writ Petition No. 542 (Civil ) of 1987 , the Respondent/Bank hurriedly entered into a settlement on the issue of absorption of temporary employees and filed it before the Supreme Court at the time of final hearing of the Writ Petition . This settlement has become an exhibit of the Respondent/Bank and has been marked as Ex . M1 . The Petitioner in this case and the Petitioners in the connected cases attacked this settlement as it is not binding on them on the ground that they have been interviewed and selected in the permanent vacancy and Respondent/Bank without any intimation or notice denied an opportunity to work in the bank after 31-3-1997 and therefore , they have raised the dispute in the year 1997 before the labour authorities and they questioned the retrenchment as unjust and illegal and they further prayed for reinstatement with back wages and other attendant benefits .

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 8341 [ भाग II- खण्ड 3 (ii ) ]

भारत का राजपत्र : सितम्बर 29 , 2007/आश्विन 7, 1929

contended that in 1996 LAB & IC 2248 CENTRAL BANK OF INDIA VS. S. SATYAM AND OTHERS the Supreme Court has held that Chapter V - A of the I.D. Act providing for retrenchment is not enacted obnly ofr the benefit of the workmento whom Section 25F applies but for all cases of retrenchment . Therefore , the application of Section 25H cannot be restricted only to one category of retrenched workmen. Therefore , the contention of the Respondent/ Bank that the Petitioner has no valid and enforceable right for appointment is untenable . It is further contended that 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 MWI and MW2 and their testimonies during the cross -examination will clearly show how the bank has given a raw deal to the Petitioner from the beginning linking his future with the settlements . Further, Clause 1 of Ex . Ml deals with categorization of retrenched temporary employees into 'A, B and C' , but this categorization of ' A, B & C' is quite opposed to the doctrine of ' last come first go ' or ' first come last go ' and therefore , the categorization in Clause 1 is illegal . Clause 1 ( a ) of Ex . MI provides an opportunityto persons who were engaged on casual basis and allowedto work in leave/ casual vacancies of messengers , farashes , cash coolies , water boys , sweepers etc. for absorption along with the other eligible categories of temporary employees is not valid. Further , engaging casuals to do messengerial work is in contravention of the guidelines mentioned in Reference Book on Staff matters , 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 . Ml , M3 and M4 respectively. But , when MWI has spoken about the settlements , he deposed that settlement dated 27-10-88 was not included in the Madras circle since the High Court order is there , but lie 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 , asrightly contended the Respondent are not justified and combined the list of candidates covered under 1987 settlement and 1988 settlement since they formed two distinct and separate classes and they cannot treat one class and their action undoubtedly amounts to violation of Article 14 of Constitution of India . Further , the averment of MW1 and the statements in Counter Statement are contrary to the above and it is nothing but a desperate attempt to wriggle out the illegality committed or perpetrated bythe Respondent/Bank by combing equals with unequals . It isfurther contended on behalf of the Petitioner that as perdeposition of MW1 wait list ander 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 in conformity with the instructions of Ex.M2 and non -preparation of separate panels amounts to violation of circular . Secondly, it has not been prepared as per instructions in Ex . W2 circular regarding projected vacancies for the period from 1987 to 1994 . Furthermore , no wait list was released/published even after the Court order in WMP No. 11932/91 W.P. No. 7872/91 directing the Respondent/ Bank to release the list of successful candidates pursuant to the first advertisement published in 'The Hindu' dated 1-8-88 . Furthermore , wait list under Ex.M10 does not carry particulars about the candidates , date of initial appointment and the number of days put in by them to arrive at their respective seniority . From all these things , it is clear that Ex . M 10 has been prepared in violation of instructions and ceased to have the credibility attached to the wait list. Above all , Ex. M1 was not produced at the time of conciliation proceedings held during the year 1997-98 held at Chennai and Madurai and only during the year 2003 the Respondent/Bank produced 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 waSs in leave vacancy . Further , even before or after the settlement on absorption of temporary employees, the , expression that they were engaged in leave vacancy was used as a device to take them out of the principal clause 2 ( oo) of the 1.D. Act , 1947.

8342

THE GAZETTE OF INDIA : SEPTEMBER 29 , 2007 ASVINA 7 , 1929