STATE BANK OF INDIA Vs. UNION OF INDIA

JUDGEMENT

(1.) Both the writ petitions have been filed by the State Bank of India (hereinafter referred to as the "Bank") against the Award passed by the Presiding Officer, Industrial Tribunal, Patna dated 7th December, 2005, Annexure-4 in C.W.J.C. No. 13529 of 2006 and 30th December, 2006, Annexure-2 in C.W.J.C. No. 10612 of 2007 in Reference Case Nos. 28 (C), 12 (C) of 2003, where under the dispute raised on behalf of the workmen, Respondent Nos. 6 to 8, has been adjudicated in their favour directing the Bank not only to reinstate them as part time Sweeper-cum-Farash in the Darbhanga Branch of the Bank but also to regularize them with effect from January, 1992 with all benefits of Grade-IV employee including pay etc. Parties and the question raised in the two petitions being common, the two writ petitions have been heard together and are being disposed of by this common order.

(2.) Facts which has given rise to the present dispute is that Darbhanga Branch of the Bank was housed in a single storied Government premises, Dilip Kumar Ram served the Branch as part-time Sweeper. In January, 1991 the Branch was shifted to its own building at Laheriasarai Station Road having three floors, each consisting of approximately 72 sq.ft. carpet area which required the services of at least three full-time Sweeper-cum-Farash. In January, 1991, the then Branch Manager of Laheriasarai Branch appointed Respondent-workmen as part-time Sweeper-cum-Farash. Though, the Respondent-workmen were appointed as part-time Sweeper-cum-Farash, they were required to serve the Branch between 8 a.m. to 5.30 p.m. on all working days. From 8 a.m. to 10 a.m. they performed the duties of Sweeper-cum-Farash and thereafter as messengers performing the usual duties of the messenger till the closure of the Branch but were paid paltry daily-wage of Rs. 10/- from January, 1991 to December, 1998 and Rs. 12/- per day from January, 1999 to 4th August, 2002. Respondent-workmen were also not allowed to mark their attendance in the Staff Attendance Register. Their attendance was marked by officers in a separate Demy-Book and as per the attendance marked in the Demy-Book they were paid wages from the Petty Cash Register of the Branch. Respondent-workmen were also deployed in the Cash Department of the Branch for packing the currency notes for remittance to Reserve Bank of India and also for burning of soiled and mutilated notes of small denomination. Although, Respondent-workmen discharged the duties of Sweeper-cum-Farash and messenger in the Darbhanga Branch of the Bank from January, 1991 but were not being paid the wage-scale and other benefits of the Subordinate Cadre Employee, State Bank of India Employees' Union (Bihar State) (hereinafter referred to as the "Union"), raised industrial dispute praying, inter alia, for payment of wage-scale, admissible to the regular Subordinate Cadre Employee serving the Branch and the Government of India, Ministry of Labour, New Delhi referred the same under order dated 30.5.2002 for adjudication by the Industrial Tribunal, Patna which was registered as Reference Case No. 12 (C) of 2003. During the pendency of the aforesaid Reference Case No. 12 (C) of 2003, the engagement of Respondent-workmen was terminated by the Bank with effect from 5th August, 2002. The Union again raised industrial dispute before the Government of India asserting that termination of the engagement of the Respondent-workmen by the Bank during the pendency of the earlier reference case is wholly unjustified. The Government of India, Ministry of Labour under order dated 18.7.2003 once again referred the subsequent dispute for adjudication by the Industrial Tribunal, Patna which was registered as Reference Case No. 28 (C) of 2003. Management of the Bank entered appearance in the two reference cases as also filed the written statement disputing the employer-employee relationship between the Bank and the Respondent-workmen. It was further stated that Respondent-workmen may claim to have worked at Darbhanga Branch of the Bank, the Incharge of the Darbhanga Branch appointed them without the approval of the Chief General Manager of the Bank. The further case of the Bank is that Darbhanga Branch of the Bank shifted to its own building in January, 1991, when the Branch had one part-time permanent Sweeper who used to sweep and clean the Branch. As the permanent part-time Sweeper remained on leave without any information, he could not properly discharge his duties of cleaning the premises of the Bank. The premises used to be cleaned by the daily-wage earners who were being paid at the rate of per day for the hours they cleaned the premises of the Bank. The daily-rated Sweepers were never appointed by the Bank in any capacity. It was further pointed out in the written statement that as per the Staff Recruitment Rules, the vacancies are to be notified and appointment to be made following the recruitment procedure, selected candidates are thereafter offered appointment. The daily-rated employees, whose dispute has been raised under the reference, no appointment procedure was ever adopted. The appointment of these three persons, in whatever capacity, was made with an ulterior motive to allow them entry in the Bank's employment through back door by some persons of the Branch who might have been interested in them. Such appointment, being illegal, is void ab initio for all purposes. It was also stated in the written statement that the Bank is already having one full time Sweeper, one half and stilI another part-time Sweeper on 3/4th of the pay. They are permanent incumbent of the Bank. If any question of regularization as full-time Sweeper in the Darbhanga Branch of the Bank would arise, the aforesaid part-time Sweepers will have their claim considered at the first instance. In any case, the question of regularization of these three concerned persons can come only after regularization of service of those part-time Sweepers engaged by the Bank is granted. It was further stated in the written statement that even assuming that these three persons have worked in the Bank for longer time as daily/casual worker this does not confer any legal right to be appointed on regular basis or for regularization of their services. It has been further stated in the written statement that the then Branch Manager who engaged these persons as part-time Sweeper or Sweeper-cum-Farash never took any interview for selecting any person to work as additional Sweeper. It is further stated that he was not authorized to make appointment. It was also stated in the written statement that these persons were never engaged to work in the Darbhanga Branch from 8 a.m. to 5.30 p.m. on any day. They were only provided work not by the Bank but by an employee of the Bank in his personal capacity. They worked only between 8.30 a.m. to 9.30 a.m. The Bank has its own peon and, as such, there was no occasion for these persons to perform the duties of messenger. Further, it has been stated that the statement made on behalf of these three persons with regard to the rate of payment and days they worked are correct but as they were paid through Petty Cash Register, they were casual workers, had no right of reinstatement and regularization. In the light of the statements made in the written statement it was submitted by the Bank that there is no question of unfair labour practice prevailing in the Bank. In support of its case the Bank produced documentary evidence enumerated in paragraph-27 of the order dated 7th December, 2005 as also examined the Chief Manager of the Branch and the then Branch Manager who engaged the workmen as M. Ws. 1, 2. The workmen also produced attendance-sheet showing their presence marked in the Branch for the month of June, 1996 to June, 1999 together with payment vouchers, W-1 series. The Tribunal having considered the documentary evidence produced by the parties, as discussed in paragraph-33, concluded in paragraph-34 of the order that these three concerned persons have received payment for the service rendered by them in the capacity of Sweeper or Kuli from the Bank. In paragraph-35 of the said order the Tribunal considered the oral evidence of one of the workmen Rajesh Kumar Ram about the period, timing and the nature of the work discharged by the workmen. In paragraph-36 of the said order the Tribunal on the basis of the oral, documentary evidence concluded that the workmen appears to have established their case that they served the Branch for more than 240 days and their engagement was terminated by the Bank without any notice or payment of wages to them, as provided under the Industrial Disputes Act, 1947 (hereinafter referred to as the "Acf). In the said paragraph the Tribunal further concluded on the basis of attendance-sheet, Exhibit-W series and the payment vouchers, Exhibit-W-1 series that these workmen have served the Branch and were paid from the Petty Cash Register of the Bank. Having recorded the aforesaid finding the Tribunal considered the submission of the workmen that the termination of their services was contrary to the provisions contained in Sections 25F and 33 of the Act in paragraphs 38 and 39 of its order and relying on the judgment of the Hon'ble Supreme Court in the case of Bank of Baroda v. Ghemarbhai Harjibhai Rabari, 2005 AIR(SC) 2799 in paragraph-40 of its order directed the Bank in paragraph 41 of the order that action of the management of the Bank in terminating the services of the Respondent-workmen with effect from 5th August, 2002, while their case for regularization was pending before the Tribunal, is highly unjustified and illegal, accordingly, directed their reinstatement in service of the Bank/Branch. Under order dated 30th December, 2006 passed in Reference Case No. 12 (C) of 2003 the Tribunal concluded that the workmen having completed 240 days of their service as part-time Sweeper-cum-Farash in every calendar year since 1991, they have to be regularized in the service of the Bank and, accordingly, directed for their regularization.

(3.) Counsel for the Petitioner-Bank has challenged both the Award dated 7th December, 2005, Annexure-4 in C.W.J.C. No. 13529 of 2006 and 30th December, 2006, Annexure-2 in C.W.J.C. No. 10612 of 2007 on various grounds, namely, that concerned Respondents having been engaged by the officer of the Branch without the prior approval of the Chief General Manager, they are not the employees serving either the Bank or the Branch as the Branch Manager, who engaged them, had no authority to engage them and engagement rendered on the basis of the illegal engagement made by the officer serving the Branch will not entitle the person concerned to claim reinstatement and regularization in the Bank. In this connection, learned Counsel for the Bank further pointed out that even if Respondent concerned have been paid from the Petty Cash Register of the Bank for the few hours of the engagement, such engagement will also not give them any right of reinstatement and regularization as the Tribunal has not recorded any finding about the hours during which the Respondent-workmen served the Branch on different days of their engagement. Learned Counsel for the Petitioner-Bank further pointed out that engagement of the Respondents concerned having been made without following the norms of advertisement and conducting selection process, such engagement, even though continued beyond 240 days in several calendar years, will not clothe the Respondents concerned with any legal right to claim reinstatement and regularization as the Respondents concerned are not workmen within the meaning of Section 2S of the Act. In this connection, learned Counsel for the Petitioner-Bank relied on several judgments of the Hon'ble Supreme Court in the case of Allahabad Bank v. Prem Singh, 1996 10 SCC 597, paragraphs 7, 8, M.P. Housing Board and Anr. v. Manoj Shrivastava, 2006 2 SCC 702, paragraphs 8, 10, 12, 15, 20, M.P. State Agro Industries Development Corpn. Ltd. and Anr. v. S.C. Pandey, 2006 2 SCC 716, paragraphs 7, 23, Secretary, State of Karnataka and Ors. v. Uma Devi (3) and Ors., 2006 4 SCC 1 , paragraphs 46, 47, 48, 49*, Hindustan Aeronautics Ltd. v. Dan Bahadur Singh and Ors., 2007 6 SCC 207, paragraphs 12, 14, 17, 18, State of Uttaranchal and Anr. v. Prantiya Sinchai Avam Bandh Yogana Shramik Mahaparishad, 2007 12 SCC 483, paragraphs, Uttaranchal Forest Hospital Trust v. Dinesh Kumar, 2008 1 PLJR(SC) 201 paragraphs 3 and 7, Sanjay Kumar Tiwary and Ors. v. The State of Bihar and Ors., 2008 2 PLJR 265, Official Liquidator v. Dayanand and Ors., 2008 10 SCC 1, para-graph-50.