IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 512 of 2008()
1. THE DISTRICT PRESIDENT,
... Petitioner
2. P.M.BENJAMIN, S/O.LATE MICHAEL P.P.,
3. T.V.JOSEPH, THARASSERY HOUSE,
Vs
1. THE ZONAL MANAGER, BANK OF INDIA,
... Respondent
2. THE PRESIDING OFFICER,
For Petitioner :SRI.C.S.AJITH PRAKASH
For Respondent :SRI.DEVAN RAMACHANDRAN
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :23/02/2010
O R D E R
K.BALAKRISHNAN NAIR & P.N.RAVINDRAN, JJ.
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W.A.No. 512 of 2008
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Dated this the 23rd day of February, 2010.
JUDGMENT
Balakrishnan Nair, J.
Appellants are the writ petitioners. They approached this Court
challenging Ext.P16 award passed by the Central Government Industrial
Tribunal in I.D. No.9 of 2005. The brief facts of the case are the following.
2. Appellants 2 and 3 were the personal drivers of two senior
officers of Bank of India from 1990 to 2005 and from 1993 to 2005
respectively. The termination of their services led to the reference of the
industrial dispute under Section 10(1)(d) of the Industrial Disputes Act by
the Central Government. The dispute referred for adjudication was
“Whether the actions of the Management of the Bank of India in not
regularising the services of the personal drivers of executives viz.,
Sri.P.M.Benjamin and Sri. T.V.Joseph and terminating their services are
correct? If not, what reliefs the workmen are entitled?”
3. From the side of the workmen, WW1 to WW4 were examined and
documents W1 to W28 were marked. From the side of the management,
MW1 was examined and documents M1 and M2 were marked. The
Tribunal after hearing both sides and adverting to evidence, took the view
that since the workmen concerned were the personal drivers of two senior
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executives, the employment under them cannot be treated as an
employment under an industry. So, no relief can be granted. Reliance was
also placed by the Tribunal on a decision of the Apex Court in Secy. State
of Karnataka v. Umadevi (2006 (4) SCC 1) to reject the claim of the
workmen. Though the workmen relied on the decision of the Apex Court in
Punjab National Bank v. Ghulam Dastagir (AIR 1978 SC 481), the
Tribunal distinguished the decision on facts. As mentioned earlier, finally
the award was passed repelling the claim of the workmen. The aggrieved
appellants challenged the award by filing the writ petition. A learned single
Judge, after hearing both sides, took the view that no ground has been
made out warranting interference with the findings of the Tribunal and the
writ petition was dismissed. The aggrieved appellants have, therefore,
preferred this writ appeal.
4. The learned counsel for the appellants submitted that though they
were designated as Personal Drivers of the senior executives, they were in
fact drivers of the bank and of the vehicles owned by the bank. Since their
services were utilised for the benefit of the Bank, they were entitled to
regularisation. It is also submitted that the bank being an industry, they
should have been terminated only by following the procedure under
Section 25F of the Industrial Disputes Act. So their termination is void for
violating Section 25F and therefore they are entitled to a declaration that
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they are continuing in service. It was also attempted to show that the
Tribunal did not advert to all the materials placed on record and its findings
are perverse.
5. We went through the award and other materials placed on record.
It is not in dispute that the workmen concerned were not engaged by the
bank after following the due procedure prescribed for engaging drivers
under it. When the workmen came to know about the vacancies, they
approached the executives concerned, who on being satisfied that they are
good drivers, engaged them. There was no invitation of applications by the
Bank or any selection made by it. So even assuming, occasionally they
have served the bank by driving its vehicles and even assuming some
payments were made by the bank, the same will not change the nature of
their engagement. They were originally engaged as drivers of the said two
senior executives and were persons of their choice. So such workmen can
never be treated as employees of the bank. Their regularisation can never
be ordered in view of the decision of the Apex Court in Umadevi’s case
(supra). Of course, the bank is an industry. But, the executives cannot be
treated as an industry. A personal servant, whether be a driver or some
other hand of an executive of a Bank cannot claim that he is working in an
industry as the said officer cannot be treated as an industry. If that be so,
the workmen concerned are not entitled to the benefit of Section 25F of the
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Industrial Disputes Act. The finding that the workmen concerned are the
personal drivers of the senior executives, being a finding of fact based on
some evidence tendered before the Tribunal, the same cannot be
disturbed under Section 226 of the Constitution of India, even if a different
view is possible. So the learned single Judge has rightly affirmed the said
finding.
In view of the said finding, no relief can be granted to the workmen
concerned. Therefore, the learned single Judge dismissed the writ petition
correctly. We affirm the said judgment and dismiss the writ appeal.
K.BALAKRISHNAN NAIR
Judge
P.N.RAVINDRAN
Judge
vps
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