S PALANI Vs. INDIAN BANK

JUDGEMENT

(1.) THIS writ petition has been filed by the petitioner S. Palani under Art. 226 of the Constitution of India for the issue of a writ in the nature of a mandamus directing the first respondent-Indian Bank to consider the petitioner's application for the appointment as a permanent peon in the Indian Bank with effect from the date when J. Satyamoorthi and Chandran, respondents 2 and 3 respectively, were so appointed in preference to the petitioner.

(2.) THE petitioner was employed as a peon in the sub-staff category of the first respondent-Bank, hereinafter referred to as the bank ", in the branches at Vaniyambadi and Ambur in North Arcot District between 2-12-1974 and 2-3-1976 in leave vacancies. THE temporary appointment of the petitioner as peon was approved by the District Manager of the Bank at Vellore. During the said period 2-12-1974 and 2-3-1976 the petitioner had worked for 133 days intermittently and was later ousted from service consequent upon the permanent incumbent coming back to work, though the petitioner was fully qualified for being appointed as a permanent peon in the Bank, he having studied upto the S.S.L.C. class. THE Bank is one of the banks nationalised by the Banking Companies (Acquisition and Transfer of Undertaking) Act 5 of 1970. THE employees of the Bank, both before and after the nationalisation, were governed by the Sastry Award as modified by the Desai Award relating to banks and by the bipartite settlement dated 19-12-66 between the Bank and the Federation of the Indian Bank Employees'Union, hereinafter referred to as the bipartite settlement. THEse terms and conditions of service of workmen in the Bank are protected statutorily by Ss.12 and 19 of the said Act 5 of 1970 and the workmen of the Bank are covered by the Industrial Disputes Act, 1947.

(3.) THE writ petition has been filed under Art. 226 of the Constitution for the issue of a writ of mandamus directing the Bank to consider the petitioner's application for appointment as a permanent peon with effect from the dates on which the respondents 2 and 3 were so appointed in preference to the petitioner. THE petitioner relies upon paragraph 493 of the Sastry Award, paragraph 20.12 of the bipartite settlement arrived at under the industrial dispute between the Management's of Banks as represented by the Indian Bank's Association, Bombay and the Bombay Exchange Banks'Association, Bombay and their workmen as represented by All India Bank Employees'Association and All India Bank Employees'Federation and S.25H of the Industrial Disputes Act read with Rule 78 of the Industrial Disputes (Central) Rules, 1957. THE contention of the petitioner is that by reason of Ss. 12 and 19(3) of the Banking Companies (Acquisition and Transfer of Undertakings) Act 5 of 1970 the Sastry Award and the bipartite settlement have acquired statutory force and the Bank should have sent notice to the petitioner before filing up the permanent vacancies of peons to enable him to exercise his option to be appointed in any of the permanent posts. THE relevant portion of paragraph 493 of the Sastry Award reads :" .... We also recommend that Banks should give first preference to those members of their retrenched staff who are otherwise qualified to fill up vacancies .... We are unable to support the demand that sons and daughters of employees should be given preference as the employment of more than one member of a family in one and the same office is not free from certain risks. We however, recommend that where a bank has a large number of offices it may give preference to the sons and daughters of employees and keep them in different offices ....." Paragraph 20.12 of the bipartite settlement reads : " Other things being equal, temporary workman (other than godown keeper) will be given preference for filling permanent vacancies and if selected they may have to under go probation "Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act 5 of 1970 relates to the power of the Central Government to make regulations. Clause (3) of that Section lays down :" Until any regulation is made under sub-s. (1) the articles of association of the existing Bank and every regulation, rule, bye-law or order made by the existing Bank shall, if in force at the commencement of this Act, be deemed to be the regulations made under sub-s. (1) and shall have effect accordingly and any reference therein to any authority of the existing Bank shall be deemed to be a reference to the corresponding authority of the corresponding new Bank and until any such corresponding authority is constituted under this Act, shall be deemed to refer to the custodian." Sub-cl. (d) of cl. (2) of S.19 of that Act lays down : "(2) In particular, and without prejudice to the generally of the foregoing power, the regulations may provide for all or any of the following matters namely :(d) the conditions or limitations subject to which the corresponding or new Bank may appoint advisors, officers or other employees and fix their remuneration and other terms and conditions of service. "THE First schedule to the said Act shows that the Bank in this case, namely, the first respondent Indian Bank is a new Bank after nationalisation corresponding to the old Indian Bank Bank Limited. Section2(oo) of the Industrial Disputes Act, 1947 defines "retrenchment" as meaning;" the termination by the employer of the service of a workman for any reason whatsoever, otherwise than as a punishment inflicted by way of disciplinary action, but does not include - (a) voluntary retirement of the workman or (b) retirement of the workman on reaching the age of superannuation if the contract of employment between the employer and the workman concerned contains a stipulation in that behalf; or (c) termination of the service of a workman on the ground of continued ill-health. "Section25F of the Industrial Disputes Act deals with the conditions precedent to retrenchment and lays down :" No workman employed in any industry, who has been in continuous service for not less than one year under an employer shall be retrenchment by that employer until - (a) the workman has been given one month's notice in writing indicating the reasons for retrenchment and the period of notice has expired or the workman has been paid in lieu of such notice, wages for the period of the notice; Provided that no such notice shall be necessary if the retrenchment is under an agreement which specifies a date for the termination of service. (b) THE workman has been paid, at the time of retrenchment, compensation which shall be equivalent to fifteen days'average pay for every completed year of continuous service or any part thereof in excess of six months; and(c) notice in the prescribed manner is served on the appropriate Government or such authority as may be specified by the appropriate Government by notification in the Official Gazette." Section25H of that Act lays down : " Where any workman are retrenched, and the employer processes to take into his employ any person, he shall, in such manner as may be prescribed give an opportunity to the retrenched workmen who are citizens of India to offer themselves for re-employment and such retrenched workmen who officer themselves for re-employment shall have preference over other persons. "Clause (1) of Rule 78 of the Industrial Disputes (Central) Rules, 1957 relates to re-employment of retrenched workman and lays down :" At least ten days before the date on which vacancies are to be filled the employer shall arrange for the display on a notice board in a conspicuous place in the premises of the industrial establishment details of those vacancies and shall also give intimation of those vacancies by registered post to everyone of all the retrenched workman eligible to be considered therefor, to the address given by him at the time of retrenchment or at any time thereafter ....