DIPANKAR CHAKRABORTY Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THE three petitioners in the present case have sought a direction of the court for regularisation of the petitioners' services as Messengers in the respondent State Bank of India, Agartala Branch and have also sought further direction for payment of salary/wages for the period from 08. 07. 1993 to 22. 04. 1995 from the Bank. The petitioners claim to have joined in the staff canteen of the Bank on various dates under a person who was managing the said canteen. Eventually, the canteen was taken over by the Bank on 08. 07. 1993 and a claim has been put forward that the Bank had engaged them as Messengers under Bank's Branch from 08. 07. 1993 onwards. The three petitioners claim to have continued working in the said capacity till 22. 04. 1995 on daily wage basis and were aggrieved by a direction given by the respondent-Manager on 22. 04. 1995 that they need not come for their work from the next date onwards.

(2.) THE three petitioners being aggrieved approached the Labour authorities for intervention which led to a conciliation proceeding on 04. 05. 1998, wherein it was found that conciliation between the parties is not possible. On receipt of the said failure report, the Desk Officer in the Ministry of Labour, Government of India addressed a communication dated 04. 03. 1999 to the writ petitioners that he has considered the failure report of the Asstt. Labour Commissioner (c), Assam and in terms of Section 12 (5) of the Industrial Disputes Act, 1947 (hereinafter referred to as 'the Act') an opinion was tendered by the Central Government that the dispute is not fit for reference to the Industrial Tribunal. The review sought by the petitioners against the aforesaid decision of refusal to refer the dispute to the Industrial Tribunal for adjudication, was also declined. Faced with the aforesaid situation, the petitioners have filed the present writ petition seeking, inter alia, regularisation of their services as noted above. The Court has heard Mr. Abhijit Sengupta, learned counsel for the petitioner, Mr. S. Deb, learned sr. counsel assisted by Mr. S. Chowdhury, learned counsel for the respondent-Bank and Mr. P. K. Biswas, learned Assistant SG for the respondent-Union of India. Mr. Sengupta has drawn the attention of this Court to the decisions in AIR 1964 SC 1617 (Bombay Union of Journalists Vs. the State of Bombey), AIR 1985 SC 860 (M. P. Irrigation Karmachari Sangha Vs. State of M. P.), which are cases pertaining to the scope and ambit of the power of the Government under the provisions of Section 10 read with Section 12 (5) of the Act. By citing these decisions, Mr. Sengupta contends that the refusal by the Central Government to refer the dispute raised for adjudication by the Industrial Tribunal is an improper decision and the said decision is liable to be interfered with by this Court. Mr. Sengupta has also submitted that since the canteen where the 3 petitioners were working was taken over by the Bank and the petitioners were engaged as Messengers on daily wage basis, their claim for regularization of service be also considered as has been prayed for in the present petition. It has been contended by the learned Sr. Counsel representing the Bank that the claim for regularization of services made by the petitioner is not entertainable and in view of the decision given by the Apex Court in the case of Secretary, State of Karnataka and Others Vs. Uma Devi, it is not open for a writ Court to consider and grant a prayer for regularization of daily wage workers such as the petitioners whose appointments were made de hors the applicable Rules. Mr. Deb has also contended that the petitioners having approached the Labour authorities for seeking relief, is not entitled in law now to approach the writ Court praying for the very same relief. Common arguments have also been advanced with regard to the further claim of the petitioners for a direction on the Government to refer the dispute for adjudication by the Industrial Tribunal. Mr. Biswas, learned Assistant SG representing the Central Government as well as Mr. S. Deb, learned Sr. Counsel representing the Bank have both contended that the petitioners have not challenged the order dated 04. 03. 99 whereby the Central Government has refused to refer the matter for adjudication by the Industrial Tribunal and accordingly, it would not be appropriate for this Court to pass order directing the Government for referring the matter for adjudication by the Industrial authorities.

(3.) THE rival arguments have been considered. It does appear from the decision in Uma Devi's Case (Supra) that the prayer for regularization of the service made by the petitioners is not liable to be entertained by this Court. This view can also be supported by the ratio laid down in 2 other decisions reported in (2005) 5 SCC 531 (State Bank of India Vs. State Bank of India Canteen Employees' Union) and (2006) 1 SCC 567 (State of Karnataka Vs. KGSD Canteen Employees' Welfare Assn ). In the SBI case (Supra), the Apex Court while examining the grievances of canteen employees who have made claim for regularization of their services have, inter alia, found that for recruitment by the Bank a set of statutory rules has been framed which is to be followed whereas for appointment of canteen employees, no rules have been framed by the Bank. Accordingly, it has been held that employees of the canteens which are run at various Branches as per the welfare scheme framed by the SBI, would not become employees of the Bank as the Bank is not having any statutory and/or contractual obligation to run such canteens. In KGSD Canteen Employees Welfare Association's case (Supra) also, the Apex Court while considering the cases of canteen employees in various establishments have held that, it is not open to High Court to exercise its discretion under Article 226 of the Constitution of India for regularizing the services of daily wage workers who have not been appointed in terms of the rules applicable for such appointment. In view of the decisions noted as above, this Court is of the opinion that the prayer made for regularization of the services of the writ petitioners is not liable to be entertained in exercise of writ discretion. Such a claim for regularization through intervention of the writ Court cannot also be considered since the writ petitioners have chosen remedies under the Industrial Disputes Act for staking their claim against the respondent-Bank.