(1.) These two writ appeals arise out of the judgment of the learned single Judge made in Writ Petition Nos. 6855 and 6857 of 1986 on August 9, 1990. The petitioners in both the writ petitions came up with identical averments and therefore, they were considered by a common judgment by the learned single Judge. The petitioner in W.P. No. 6855 of 1986 was appointed as a Sub-Staff in the respondents/ Bank on September 22, 1980 while the petitioner in W.P. No. 6857 of 1986 was appointed as a Sub-Staff on March 3, 1978. While the former was discontinued from service with effect from October 26, 1984 the latter was discontinued from service with effect from July 8, 1983. According to the petitioner in W.P. No. 68552C of 1986 he had worked for a total number of 394 days during the period from September 22, 1980 to October 26, 1984. According to the petitioner in W.P. No. 6857 of 1986 he had worked for a total period of 400 days during the period from March 3, 1978 to July 8, 1983. The affidavits filed in support of the writ petitions proceeded on the basis that the oral termination of service ab initio was void and violative of Section 25F of the Industrial Disputes Act (hereinafter called "the Act"). It was further contended that the petitioners were deemed to he in continuous service from the date of the first appointment as per Section 25B of the Act. It was also contended that several juniors appointed subsequent to the date of the appointment of the petitioners were being continued in service and therefore, the discontinuance of the petitioners is illegal. On the above averments, the prayer in the writ petitions was for the issue of a writ of mandamus to direct the respondents/ Bank to absorb the petitioners as Sub-Staff with continuity of service and other attendant benefits. In the counter affidavits filed by the respondents/Bank it was contended that the petitioners were engaged as casual employees in leave vacancies as and when vacancies arose in different branches of the Bank. It was contended that the allegations required factual proof and question cannot be agitated in proceedings under Article 226 of the Constitution of India. The remedy if any of the petitioners was to raise a dispute under the Act. On merits the specific plea was that the petitioners were not retrenched within the meaning of Section 25G of the Act, but on account of undesirability in engaging him even on a casual basis due to his involvement in a fraud. In respect of such a disengagement of services of casual labour, the a provisions of Sections 25F, 25G and 25H of the Act have no application at all. It was also contended that the petitioners had not put in continuous service of one year as defined under section 25B of the Act. It was also specifically contended that the reliefs sought for by the petitioners could not be granted and there was no question of permanent absorption of the petitioners.
(2.) On the above pleadings, Govindasamy, J. who heard the writ petitions observed :
(3.) Inasmuch as the grounds raised in the Writ Appeals were not raised at the time of the disposal of the writ petition, the respondent/Bank has filed a common counter-affidavit in the Writ Appeals. It is contended that the appellants were engaged in a day to day basis and a panel of such employees was maintained, but it was outside the regular establishment of the Bank. Their names are not borne on the Attendance Register of the Banks. Their daily wages are paid through vouchers. There was no question of taking disciplinary action against them for their undesirability because they were only in a panel of casual employees. It is also stated that simply because they are called temporary staff in certain circulars, they could not become temporary employees as per (sic.) Paragraphs 20.7 and 20.8 of the Bipartite Settlement. Inasmuch as the respondent/Bank has filed a counter affidavit on the fresh points taken in the Writ Appeals and in as much as the appeals are pending for over 5 years, we do not propose to reject the fresh points taken in the Writ Appeals. We have heard the arguments of Mr. Prasad for the appellants and Mr. G. Venkataraman for the respondents. The following issues arise for consideration :-