{"id":247117,"date":"2010-10-12T00:00:00","date_gmt":"2010-10-11T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-bank-of-india-vs-the-union-of-india-amp-ors-on-12-october-2010"},"modified":"2018-07-28T04:24:46","modified_gmt":"2018-07-27T22:54:46","slug":"state-bank-of-india-vs-the-union-of-india-amp-ors-on-12-october-2010","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-bank-of-india-vs-the-union-of-india-amp-ors-on-12-october-2010","title":{"rendered":"State Bank Of India vs The Union Of India &Amp; Ors on 12 October, 2010"},"content":{"rendered":"
Patna High Court – Orders<\/div>\n
State Bank Of India vs The Union Of India &Amp; Ors on 12 October, 2010<\/div>\n
           IN THE HIGH COURT OF JUDICATURE AT PATNA.\n\n                    C.W.J.C.No. 13529 of 2006.\n\nSTATE BANK OF INDIA, A BANKING COMPANY, CONSTITUTED\nUNDER THE STATE BANK OF INDIA ACT, 1955, HAVING ITS\nCORPORATE OFFICE AT MUMBAI AND LOCAL HEAD OFFICE AT\nWEST GANDHI MAIDAN, PATNA THROUGH DEVENDRA NATH\nPURI, SON OF SURAJ NARAIN PURI, ASSISTANT GENERAL\nMANAGER (PERSONNEL & HRD), RESIDENT OF STATE BANK OF\nINDIA, L.H.O., PATNA, P.S.- GANDHI MAIDAN,\nDISTRICT- PATNA :-------------------PETITIONER.\n                              -VERSUS-\n1. THE UNION OF INDIA, MINISTRY OF LABOUR, NEW DELHI\nTHROUGH ITS SECRETARY.\n2. THE INDUSTRIAL TRIBUNAL, BAILEY ROAD, PATNA THROUGH\nITS SECRETARY.\n3. THE REGIONAL LABOUR COMMISSIONER (CENTRAL), BIHAR,\nPATNA.\n4. THE ASSISTANT LABOUR COMMISSIONER (CENTRAL), BIHAR,\nPATNA.\n5. THE STATE BANK OF INDIA EMPLOYEES\u201f UNION ASSOCIATION,\nBIHAR, PATNA, 215, ASHOKA PLACE, EXHIBITION ROAD, PATNA,\nTHROUGH ITS GENERAL SECRETARY.\n6. RAMPRIT YADAV, S\/O- SRI YOGENDRA YADAV, RESIDENT OF\nBENTA CHAUK, P.O.- LAHERIASARAI, DISTRICT- DARBHANGA.\n7. RAJESH KUMAR RAM, S\/O- SHRI LOTAN RAM, RESIDENT OF\nLAXMI SAGAR, SAIDPUR, ANWAR CITY, DARBHANGA.\n8. RATNESH PASWAN, S\/O- LATE SHEOJEE PASWAN, RESIDENT\nOF BALBHADRAPUR, NAVTOLIA, P.S. BAHADURPUR, DISTRICT-\nDARBHANGA:------------RESPONDENTS.\n                                   -with-\n\n                C.W.J.C.NO. 10612 of 2007.\n\nSTATE BANK OF INDIA, A BANKING COMPANY, CONSTITUTED\nUNDER THE STATE BANK OF INDIA ACT, 1955, HAVING ITS\nCORPORATE OFFICE AT MUMBAI AND LOCAL HEAD OFFICE AT\nWEST GANDHI MAIDAN, PATNA THROUGH DEVENDRA NATH\nPURI, SON OF SURAJ NARAIN PURI, ASSISTANT GENERAL\n                                  2\n\n\n\n\nMANAGER (PERSONNEL & HRD), RESIDENT OF STATE BANK OF\nINDIA, L.H.O., PATNA, P.S.- GANDHI MAIDAN,\n DISTRICT- PATNA :-------------------PETITIONER.\n                                -VERSUS-\n1. THE UNION OF INDIA, MINISTRY OF LABOUR, NEW DELHI\nTHROUGH ITS SECRETARY.\n2. THE INDUSTRIAL TRIBUNAL, BAILEY ROAD, PATNA THROUGH\nITS SECRETARY.\n3. THE REGIONAL LABOUR COMMISSIONER (CENTRAL), BIHAR,\nPATNA.\n4. THE ASSISTANT LABOUR COMMISSIONER (CENTRAL), BIHAR,\nPATNA.\n5. THE STATE BANK OF INDIA EMPLOYEES\u201f UNION ASSOCIATION,\nBIHAR, PATNA, 215, ASHOKA PLACE, EXHIBITION ROAD, PATNA,\nTHROUGH ITS GENERAL SECRETARY.\n6. RAMPRIT YADAV, S\/O- SRI YOGENDRA YADAV, RESIDENT OF\nBENTA CHAUK, P.O.- LAHERIASARAI, DISTRICT- DARBHANGA.\n7. RAJESH KUMAR RAM, S\/O- SHRI LOTAN RAM, RESIDENT OF\nLAXMI SAGAR, SAIDPUR, ANWAR CITY, DARBHANGA.\n8. RATNESH PASWAN, S\/O- LATE SHEOJEE PASWAN, RESIDENT\nOF BALBHADRAPUR, NAVTOLIA, P.S. BAHADURPUR, DISTRICT-\nDARBHANGA:------------RESPONDENTS.\n                               ============\n<\/pre>\n
For the Petitioner :   M\/S S.D. Sanjay & Akash Chaturvedi,
\n                                                 Advocates.\n<\/p>\n
For the U.O.I.     :   Mr. Sahvind Kumar Sharma (C.G.C.) &
\n                       Mr. Sanjay Kumar Pandey, (C.G.).\n<\/p>\n
For Respondent
\nnos. 6 to 8        :   Mr. Anil Kumar Upadhyay, Advocate.<\/p>\n
                       ====================
\n                                    3<\/span><\/p>\n
18.   12 -10-2010.                Both the writ petitions have been filed<\/p>\n
                     by the State Bank of India (hereinafter referred to<\/p>\n
                     as the “Bank”) against the Award passed by the<\/p>\n
                     Presiding Officer, Industrial Tribunal, Patna dated<\/p>\n
                     7th December, 2005, Annexure-4 in C.W.J.C.No.<\/p>\n
                     13529   of   2006    and   30th   December,   2006,<\/p>\n
                     Annexure-2 in C.W.J.C.No. 10612 of 2007 in<\/p>\n
                     Reference Case No. 28 (C), 12 (C) of 2003,<\/p>\n
                     whereunder the dispute raised on behalf of the<\/p>\n
                     workmen, Respondent Nos. 6 to 8, has been<\/p>\n
                     adjudicated in their favour directing the Bank not<\/p>\n
                     only to reinstate them as part time Sweeper-cum-<\/p>\n
                     Farash in the Darbhanga Branch of the Bank but<\/p>\n
                     also to regularize them with effect from January,<\/p>\n
                     1992 with all benefits of Grade-IV employee<\/p>\n
                     including pay etc. Parties and the question raised<\/p>\n
                     in the two petitions being common, the two writ<\/p>\n
                     petitions have been heard together and are being<\/p>\n
                     disposed of by this common order.\n<\/p>\n
                                       2. Facts which has given rise to<\/p>\n
                     the present dispute is that Darbhanga Branch of
\n              4<\/span><\/p>\n
the   Bank   was   housed   in   a   single   storied<\/p>\n
Government premises, Dilip Kumar Ram served<\/p>\n
the Branch as part-time Sweeper. In January,<\/p>\n
1991 the Branch was shifted to its own building<\/p>\n
at Laheriasarai Station Road having three floors,<\/p>\n
each consisting of approximately 72 sq.ft. carpet<\/p>\n
area which required the services of at least three<\/p>\n
full time Sweeper-cum-Farash. In January, 1991,<\/p>\n
the then Branch Manager of Laheriasarai Branch<\/p>\n
appointed    respondent-workmen      as   part-time<\/p>\n
Sweeper-cum-Farash. Though, the respondent-<\/p>\n
workmen were appointed as part-time Sweeper-<\/p>\n
cum-Farash, they were required to serve the<\/p>\n
Branch between 8 a.m. to 5.30 p.m. on all<\/p>\n
working days. From 8 a.m. to 10 a.m. they<\/p>\n
performed the duties of Sweeper-cum-Farash and<\/p>\n
thereafter as messengers performing the usual<\/p>\n
duties of the messenger till the closure of the<\/p>\n
Branch but were paid paltry daily-wage of Rs.<\/p>\n
10\/- from January, 1991 to December, 1998 and<\/p>\n
Rs. 12\/- per day from January, 1999 to 4th
\n              5<\/span><\/p>\n
August, 2002. Respondent-workmen were also not<\/p>\n
allowed to mark their attendance in the Staff<\/p>\n
Attendance    Register.     Their   attendance    was<\/p>\n
marked by officers in a separate Demy-Book and<\/p>\n
as per the attendance marked in the Demy-book<\/p>\n
they were paid wages from the Petty Cash Register<\/p>\n
of the Branch. Respondent-workmen were also<\/p>\n
deployed in the Cash Department of the Branch<\/p>\n
for packing the currency notes for remittance to<\/p>\n
Reserve Bank of India and also for burning of<\/p>\n
soiled and mutilated notes of small denomination.<\/p>\n
Although, respondent-workmen discharged the<\/p>\n
duties of Sweeper-cum-Farash and messenger in<\/p>\n
the Darbhanga Branch of the Bank from January,<\/p>\n
1991 but were not being paid the wage-scale and<\/p>\n
other   benefits   of     the   Sub-ordinate     Cadre<\/p>\n
Employee, State Bank of India Employees\u201f Union<\/p>\n
(Bihar State) (hereinafter referred to as the<\/p>\n
“Union”), raised industrial dispute praying, inter<\/p>\n
alia, for payment of wage-scale, admissible to the<\/p>\n
regular Sub-ordinate Cadre Employee serving the
\n               6<\/span><\/p>\n
Branch and the Government of India, Ministry of<\/p>\n
Labour, New Delhi referred the same under order<\/p>\n
dated 30.5.2002 for adjudication by the Industrial<\/p>\n
Tribunal, Patna which was registered as Reference<\/p>\n
Case No. 12 (C) of 2003. During the pendency of<\/p>\n
the aforesaid Reference Case No. 12 (C) of 2003,<\/p>\n
the    engagement    of   respondent-workmen       was<\/p>\n
terminated by the Bank with effect from 5th<\/p>\n
August, 2002. The Union again raised industrial<\/p>\n
dispute before the Government of India asserting<\/p>\n
that   termination   of   the    engagement   of   the<\/p>\n
respondent-workmen by the Bank during the<\/p>\n
pendency of the earlier reference case is wholly<\/p>\n
unjustified. The Government of India, Ministry of<\/p>\n
Labour under order dated 18.7.2003 once again<\/p>\n
referred the subsequent dispute for adjudication<\/p>\n
by the Industrial Tribunal, Patna which was<\/p>\n
registered as Reference Case No. 28 (C) of 2003.<\/p>\n
Management of the Bank entered appearance in<\/p>\n
the two reference cases as also filed the written<\/p>\n
statement    disputing     the    employer-employee
\n                7<\/span><\/p>\n
relationship       between   the   Bank    and     the<\/p>\n
respondent-workmen. It was further stated that<\/p>\n
respondent-workmen may claim to have worked at<\/p>\n
Darbhanga Branch of the Bank, the Incharge of<\/p>\n
the Darbhanga Branch appointed them without<\/p>\n
the approval of the Chief General Manager of the<\/p>\n
Bank. The further case of the Bank is that<\/p>\n
Darbhanga Branch of the Bank shifted to its own<\/p>\n
building in January, 1991, when the Branch had<\/p>\n
one part-time permanent Sweeper who used to<\/p>\n
sweep and clean the Branch. As the permanent<\/p>\n
part-time Sweeper remained on leave without any<\/p>\n
information, he could not properly discharge his<\/p>\n
duties of cleaning the premises of the Bank. The<\/p>\n
premises used to be cleaned by the daily-wage<\/p>\n
earners who were being paid at the rate of per day<\/p>\n
for the hours they cleaned the premises of the<\/p>\n
Bank.   The    daily-rated   Sweepers     were   never<\/p>\n
appointed by the Bank in any capacity. It was<\/p>\n
further pointed out in the written statement that<\/p>\n
as per the Staff Recruitment Rules, the vacancies
\n                8<\/span><\/p>\n
are to be notified and appointment to be made<\/p>\n
following   the recruitment procedure, selected<\/p>\n
candidates are thereafter offered appointment.<\/p>\n
The daily-rated employees, whose dispute has<\/p>\n
been raised under the reference, no appointment<\/p>\n
procedure was ever adopted. The appointment of<\/p>\n
these three persons, in whatever capacity, was<\/p>\n
made with an ulterior motive to allow them entry<\/p>\n
in the Bank\u201fs employment through back door by<\/p>\n
some persons of the Branch who might have been<\/p>\n
interested in them. Such appointment, being<\/p>\n
illegal, is void ab initio for all purposes. It was also<\/p>\n
stated in the written statement that the Bank is<\/p>\n
already having one full time Sweeper, one half and<\/p>\n
still another part-time Sweeper on 3\/4th of the<\/p>\n
pay. They are permanent incumbent of the Bank.<\/p>\n
If any question of regularization as full-time<\/p>\n
Sweeper in the Darbhanga Branch of the Bank<\/p>\n
would arise, the aforesaid part-time Sweepers will<\/p>\n
have their claim considered at the first instance.<\/p>\n
In any case, the question of regularization of these
\n              9<\/span><\/p>\n
three concerned persons can come only after<\/p>\n
regularization   of   service   of   those   part-time<\/p>\n
Sweepers engaged by the Bank is granted. It was<\/p>\n
further stated in the written statement that even<\/p>\n
assuming that these three persons have worked in<\/p>\n
the Bank for longer time as daily\/casual worker<\/p>\n
this does not confer any legal right to be<\/p>\n
appointed on regular basis or for regularization of<\/p>\n
their services. It has been further stated in the<\/p>\n
written statement that the then Branch Manager<\/p>\n
who engaged these persons as part-time Sweeper<\/p>\n
or Sweeper-cum-Farash never took any interview<\/p>\n
for selecting any person to work as additional<\/p>\n
Sweeper. It is further stated that he was not<\/p>\n
authorized to make appointment. It was also<\/p>\n
stated in the written statement that these persons<\/p>\n
were never engaged to work in the Darbhanga<\/p>\n
Branch from 8 a.m. to 5.30 p.m. on any day. They<\/p>\n
were only provided work not by the Bank but by<\/p>\n
an employee of the Bank in his personal capacity.<\/p>\n
They worked only between 8.30 a.m. to 9.30 a.m.
\n              10<\/span><\/p>\n
The Bank has its own peon and, as such, there<\/p>\n
was no occasion for these persons to perform the<\/p>\n
duties of messenger. Further, it has been stated<\/p>\n
that the statement made on behalf of these three<\/p>\n
persons with regard to the rate of payment and<\/p>\n
days they worked are correct but as they were<\/p>\n
paid through Petty Cash Register, they were<\/p>\n
casual workers, had no right of reinstatement and<\/p>\n
regularization. In the light of the statements made<\/p>\n
in the written statement it was submitted by the<\/p>\n
Bank that there is no question of unfair labour<\/p>\n
practice prevailing in the Bank. In support of its<\/p>\n
case the Bank produced documentary evidence<\/p>\n
enumerated in paragraph-27 of the order dated<\/p>\n
7th December, 2005 as also examined the Chief<\/p>\n
Manager of the Branch and the then Branch<\/p>\n
Manager who engaged the workmen as M.W.-1,2.<\/p>\n
The workmen also produced attendance-sheet<\/p>\n
showing their presence marked in the Branch for<\/p>\n
the month of June, 1996 to June, 1999 together<\/p>\n
with payment vouchers, W-1 series. The Tribunal
\n              11<\/span><\/p>\n
having   considered     the   documentary    evidence<\/p>\n
produced   by     the   parties,   as   discussed   in<\/p>\n
paragraph-33, concluded in paragraph-34 of the<\/p>\n
order that these three concerned persons have<\/p>\n
received payment for the service rendered by them<\/p>\n
in the capacity of Sweeper or Kuli from the Bank.<\/p>\n
In paragraph-35 of the said order the Tribunal<\/p>\n
considered the oral evidence of one of the<\/p>\n
workmen Rajesh Kumar Ram about the period,<\/p>\n
timing and the nature of the work discharged by<\/p>\n
the workmen. In paragraph-36 of the said order<\/p>\n
the Tribunal on the basis of the oral, documentary<\/p>\n
evidence concluded that the workmen appears to<\/p>\n
have established their case that they served the<\/p>\n
Branch for more than 240 days and their<\/p>\n
engagement was terminated by the Bank without<\/p>\n
any notice or payment of wages to them, as<\/p>\n
provided under the Industrial Disputes Act, 1947<\/p>\n
(hereinafter referred to as the “Act”). In the said<\/p>\n
paragraph the Tribunal further concluded on the<\/p>\n
basis of attendance-sheet, Exhibit-W series and
\n                12<\/span><\/p>\n
the payment vouchers, Exhibit-W-1 series that<\/p>\n
these workmen have served the Branch and were<\/p>\n
paid from the Petty Cash Register of the Bank.<\/p>\n
Having recorded the aforesaid finding the Tribunal<\/p>\n
considered the submission of the workmen that<\/p>\n
the termination of their services was contrary to<\/p>\n
the provisions contained in Section 25F and 33 of<\/p>\n
the Act in paragraphs 38 and 39 of its order and<\/p>\n
relying on the judgment of the Hon\u201fble Supreme<\/p>\n
Court in the case of Bank of Baroda Vs.<\/p>\n
Ghemarbhai Harjibhai Rabari, reported in A.I.R.<\/p>\n
2005 Supreme Court 2799 in paragraph-40 of its<\/p>\n
order directed the Bank in paragraph 41 of the<\/p>\n
order that action of the management of the Bank<\/p>\n
in terminating the services of the respondent-<\/p>\n
workmen with effect from 5th August, 2002, while<\/p>\n
their case for regularization was pending before<\/p>\n
the Tribunal, is highly unjustified and illegal,<\/p>\n
accordingly,    directed   their   reinstatement   in<\/p>\n
service of the Bank\/Branch. Under order dated<\/p>\n
30th December, 2006 passed in Reference Case
\n                   13<\/span><\/p>\n
No. 12 (C) of 2003 the Tribunal concluded that the<\/p>\n
workmen having completed 240 days of their<\/p>\n
service as part-time Sweeper-cum-Farash in every<\/p>\n
calendar year since 1991, they have to be<\/p>\n
regularized in the service of the Bank and,<\/p>\n
accordingly, directed for their regularization.<\/p>\n
                       3. Counsel for the petitioner-Bank<\/p>\n
has   challenged          both   the    Award    dated   7th<\/p>\n
December,        2005,     Annexure-4     in    C.W.J.C.No.<\/p>\n
13529     of     2006      and   30th   December,     2006,<\/p>\n
Annexure-2 in C.W.J.C.No. 10612 of 2007 on<\/p>\n
various        grounds,      namely,     that    concerned<\/p>\n
respondents having been engaged by the officer of<\/p>\n
the Branch without the prior approval of the Chief<\/p>\n
General Manager, they are not the employees<\/p>\n
serving either the Bank or the Branch as the<\/p>\n
Branch Manager, who engaged them, had no<\/p>\n
authority       to     engage    them   and     engagement<\/p>\n
rendered on the basis of the illegal engagement<\/p>\n
made by the officer serving the Branch will not<\/p>\n
entitle     the        person    concerned       to   claim
\n                   14<\/span><\/p>\n
reinstatement and regularization in the Bank. In<\/p>\n
this connection, learned counsel for the Bank<\/p>\n
further pointed out that even if respondent<\/p>\n
concerned have been paid from the Petty Cash<\/p>\n
Register of the Bank for the few hours of the<\/p>\n
engagement, such engagement will also not give<\/p>\n
them        any        right      of    reinstatement       and<\/p>\n
regularization as the Tribunal has not recorded<\/p>\n
any finding about the hours during which the<\/p>\n
respondent-workmen               served     the    Branch    on<\/p>\n
different     days      of     their   engagement.    Learned<\/p>\n
counsel for the petitioner-Bank further pointed<\/p>\n
out    that       engagement           of   the    respondents<\/p>\n
concerned having been made without following<\/p>\n
the    norms      of    advertisement        and    conducting<\/p>\n
selection process, such engagement, even though<\/p>\n
continued beyond 240 days in several calendar<\/p>\n
years, will not clothe the respondents concerned<\/p>\n
with any legal right to claim reinstatement and<\/p>\n
regularization as the respondents concerned are<\/p>\n
not workmen within the meaning of Section 2S of
\n              15<\/span><\/p>\n
the Act. In this connection, learned counsel for<\/p>\n
the petitioner-Bank relied on several judgments of<\/p>\n
the Hon\u201fble Supreme Court in the case of<\/p>\n
Allahabad Bank Vs. Prem Singh,            reported in<\/p>\n
(1996) 10 Supreme Court Cases 597, paragraphs<\/p>\n
7,8, M.P.Housing Board and another Vs. Manoj<\/p>\n
Shrivastava, reported in (2006) 2 Supreme Court<\/p>\n
Cases 702, paragraphs 8,10,12,15,20, M.P. State<\/p>\n
Agro Industries Development Corpn. Ltd. and<\/p>\n
another Vs. S.C.Pandey, reported in (2006) 2<\/p>\n
Supreme Court Cases         716, paragraphs 7,23,<\/p>\n
Secretary, State of Karnataka and others Vs. Uma<\/p>\n
Devi (3) and others, reported in (2006) 4 Supreme<\/p>\n
Court   Cases     1,   paragraphs   46,   47,48,   49,<\/p>\n
Hindustan Aeronautics Ltd. Vs. Dan Bahadur<\/p>\n
Singh and others, reported in (2007) 6 Supreme<\/p>\n
Court Cases 207, paragraphs 12,14,17, 18, State<\/p>\n
of Uttaranchal and another Vs. Prantiya Sinchai<\/p>\n
Avam Bandh Yogana Shramik Mahaparishad,<\/p>\n
reported in (2007) 12 Supreme Court Cases 483,<\/p>\n
paragraph-5, Uttaranchal Forest Hospital Trust
\n                 16<\/span><\/p>\n
Vs.   Dinesh         Kumar,     reported   in   2008(1)<\/p>\n
P.L.J.R.201(SC) paragraphs 3 and 7, Sanjay<\/p>\n
Kumar Tiwary & Ors. Vs. The State of Bihar &<\/p>\n
Ors., reported in 2008(2) PLJR 265, Official<\/p>\n
Liquidator Vs. Dayanand and others, reported in<\/p>\n
(2008) 10 Supreme Court Cases 1, paragraph-50.<\/p>\n
                     4. Counsel for the respondent-\n<\/p>\n
workmen has opposed the submission of the<\/p>\n
counsel   for    the     Bank    and   submitted   that<\/p>\n
respondent-workmen were engaged by the Branch<\/p>\n
Manager of the Darbhanga Branch in January,<\/p>\n
1991 when the Branch shifted to its own building<\/p>\n
so as to meet the exigencies of the Banking<\/p>\n
services and to mitigate the inconvenience of the<\/p>\n
customers coming to the Branch on paltry daily-<\/p>\n
wage of Rs. 10\/- per day from January, 1991 to<\/p>\n
December, 1998 and at Rs. 12\/- per day from<\/p>\n
January, 1999 to 4th August, 2002. Such payment<\/p>\n
was being made to the workmen from the Petty<\/p>\n
Cash Register of the Branch in lieu whereof the<\/p>\n
workmen were serving the Branch from 8 a.m. to
\n                   17<\/span><\/p>\n
5.30 p.m. on all working days. Highlighting the<\/p>\n
aforesaid unfair labour practice by the Bank the<\/p>\n
Union     raised       industrial   dispute   before    the<\/p>\n
Government of India, Ministry of Labour which<\/p>\n
was referred for adjudication by the Tribunal<\/p>\n
under reference dated 30th May, 2002 which was<\/p>\n
registered as Reference Case No. 12 (C) of 2003.<\/p>\n
During the pendency of the aforesaid Reference<\/p>\n
Case No. 12 (C) of 2003 the Bank proceeded to<\/p>\n
terminate the services of the respondent-workmen<\/p>\n
with    effect    from     5th   August,   2002   without<\/p>\n
following the mandate of Section 25F as also in<\/p>\n
teeth of the provisions contained in Section 33 of<\/p>\n
the    Act    which      restrain   the    employer    from<\/p>\n
changing the service condition of the workman<\/p>\n
during the pendency of any proceeding before the<\/p>\n
Tribunal      without     the    express   permission    in<\/p>\n
writing      of    the    Tribunal.   Learned     counsel<\/p>\n
categorically submitted that before terminating<\/p>\n
the services of the respondent-workmen the Bank<\/p>\n
and the Branch neither complied the provisions
\n              18<\/span><\/p>\n
contained in Section 25F of the Act nor sought<\/p>\n
permission of the Tribunal to terminate the<\/p>\n
services of the respondent-workmen. He further<\/p>\n
pointed out with reference to the preamble and<\/p>\n
object of the Act as also the definition of the term<\/p>\n
\u201eworkman\u201f given thereunder that any person<\/p>\n
employed in any industry is workman if he is not<\/p>\n
employed    in    a   managerial,   administrative,<\/p>\n
supervisory capacity and with reference to the<\/p>\n
said definition it is submitted that respondent-<\/p>\n
workmen having been engaged as Sweeper-cum-<\/p>\n
Farash, there should not be any difficulty in<\/p>\n
concluding that they were workmen serving the<\/p>\n
Branch and were covered by the provisions of the<\/p>\n
Act. In the circumstances, according to learned<\/p>\n
counsel for the respondent-workmen termination<\/p>\n
of the services of the respondent-workmen has<\/p>\n
been rightly set aside by the Tribunal under<\/p>\n
Award dated 7th December, 2005 with direction to<\/p>\n
reinstate the workmen and this Court should not<\/p>\n
interfere with the same. With reference to the
\n              19<\/span><\/p>\n
findings   recorded    in    the    Award        dated    30th<\/p>\n
December, 2006 passed in Reference Case No. 12<\/p>\n
(C) of 2003, learned counsel for the respondent-<\/p>\n
workmen, however, conceded that the Tribunal<\/p>\n
while   recording     the   finding       that   the     three<\/p>\n
workmen completed 240 days of service as part-<\/p>\n
time Sweeper-cum-Farash in every calendar year<\/p>\n
since 1991 did not record any finding about the<\/p>\n
hours of work rendered by the workmen on the<\/p>\n
days of their engagement. In support of his<\/p>\n
submission learned counsel for the respondent-<\/p>\n
workmen relied on the judgment of the Hon\u201fble<\/p>\n
Supreme     Court     in    the    case     of   Hindustan<\/p>\n
Antibiotics Ltd., Appellant V. The Workmen,<\/p>\n
Respondent. And Vice<\/a> versa. 1. Saurashtra Vidul<\/p>\n
Kamdar Sangh and 2. The Workmen of Kerala<\/p>\n
State Electricity Board, Interveners, reported in<\/p>\n
A.I.R. 1967 Supreme Court 948, paragraphs 9<\/p>\n
and 10 to highlight the aims and object of the Act,<\/p>\n
on the judgment in the case of               Calcutta Port<\/p>\n
Shramik Union Vs. The Calcutta River Transport
\n                20<\/span><\/p>\n
Association and others, reported in A.I.R. 1988<\/p>\n
Supreme Court 2168, paragraphs 10,19,20 and<\/p>\n
submitted that while considering the challenge<\/p>\n
made to the Award passed by the Labour Court<\/p>\n
approach of the superior court should not be to<\/p>\n
pick-up holes in the Award unless it is found to be<\/p>\n
absurd. He further relied on the judgment of the<\/p>\n
Hon\u201fble Supreme Court in the case of Jaipur Zila<\/p>\n
Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal<\/p>\n
Sharma and others, reported in (2002) 2 Supreme<\/p>\n
Court   Cases           244,    Constitution   Bench,<\/p>\n
paragraphs 6,13 to 16 to submit that termination<\/p>\n
of the services of the workmen during the<\/p>\n
pendency of the earlier reference case is violative<\/p>\n
of Section 33 of the Act and reinstatement has to<\/p>\n
be made for ensuring compliance of Section 33 of<\/p>\n
the Act so as to relieve the employer of        penal<\/p>\n
consequences provided under Section 33(1) of the<\/p>\n
Act. He further pointed out with reference to the<\/p>\n
recruitment rules of the Bank for the clerical and<\/p>\n
sub-ordinate    cadre    that   appointment    in   the
\n                 21<\/span><\/p>\n
clerical cadre is to be made after following the<\/p>\n
norms of advertisement and selection procedure<\/p>\n
but so far appointment in the non-messengerial<\/p>\n
position like Farash, Water-boy, Cash-Kuli etc. is<\/p>\n
concerned, may be made from the panel of the<\/p>\n
wait-listed candidates who have been engaged to<\/p>\n
serve the Branch\/Bank in order to meet the<\/p>\n
exigencies of the Banking service, as was done in<\/p>\n
the case of the respondent-workmen who were<\/p>\n
engaged to serve the Branch when the Branch<\/p>\n
was shifted from the Government premises to its<\/p>\n
own accommodation which had three floors and<\/p>\n
required more number of Sweepers to sweep the<\/p>\n
floors for the convenience of the customers. With<\/p>\n
reference to the judgment of the Hon\u201fble Supreme<\/p>\n
Court in the case of Maharashtra State Road<\/p>\n
Transport Corporation and another Vs. Casteribe<\/p>\n
Rajya Parivahan Karmchari Sanghatana, reported<\/p>\n
in (2009) 8 Supreme Court Cases 556, learned<\/p>\n
counsel   for    the   respondent-workmen   further<\/p>\n
submitted that Constitution Bench judgment of
\n                 22<\/span><\/p>\n
the Hon\u201fble Supreme Court in the case of Uma<\/p>\n
Devi (supra) does not denude the Industrial and<\/p>\n
Labour Court of their statutory power to order<\/p>\n
permanency of the workers who have been victim<\/p>\n
of unfair labour practice on the part of the<\/p>\n
employer under Item-10 of Schedule-V of the Act.<\/p>\n
Learned counsel further submitted that Uma Devi<\/p>\n
(supra) is an authoritative pronouncement for the<\/p>\n
proposition that the Supreme Court under Article<\/p>\n
32 and the High Courts under Article 226 should<\/p>\n
not issue direction for absorption, regularization<\/p>\n
or     granting        permanency        of     temporary,<\/p>\n
contractual,         casual,   daily-wage       or   ad-hoc<\/p>\n
employees unless the recruitment itself was made<\/p>\n
regularly in terms of the constitutional scheme.<\/p>\n
               5. Having considered the submissions<\/p>\n
made    on     behalf     of   the   parties,   it   appears<\/p>\n
Respondent Nos. 6 to 8 are workmen within the<\/p>\n
meaning of the Act and are entitled to raise<\/p>\n
dispute under the Act for adjudication by the<\/p>\n
Tribunal for grant of permanent status on non-
\n                23<\/span><\/p>\n
messengerial position by the Bank. Uma Devi (3)<\/p>\n
(supra) is an authoritative pronouncement for the<\/p>\n
proposition that Supreme Court under Article 32<\/p>\n
and the High Courts under Article 226 should not<\/p>\n
issue directions for absorption, regularization or<\/p>\n
for grant of permanent status of temporary,<\/p>\n
contractual,    casual,   daily-wage   or   ad   hoc<\/p>\n
employees unless the recruitment itself was made<\/p>\n
on regular basis. Notwithstanding the judgment of<\/p>\n
the Hon\u201fble Supreme Court in Uma Devi (3)<\/p>\n
(supra) the Tribunal, Constituted under the Act, is<\/p>\n
not denuded of authority to order permanency of<\/p>\n
the workers who have been victims of unfair<\/p>\n
labour practice on the part of the employer under<\/p>\n
Item No.10 of Schedule-V of the Act. Reliance<\/p>\n
placed by the counsel for the petitioner-Bank on<\/p>\n
the other judgments referred to in Paragraph-3<\/p>\n
appears to be misplaced in the light of my<\/p>\n
observations above. Now, I proceed to examine the<\/p>\n
contents of the two impugned Awards. It is<\/p>\n
evident from the Award dated 7th December, 2005,
\n                   24<\/span><\/p>\n
Annexure-4 in C.W.J.C.No. 13529 of 2006 that<\/p>\n
services     of        the     respondent-workmen              was<\/p>\n
terminated        by    the     Branch\/Bank           during   the<\/p>\n
pendency of Reference Case No. 12 (C) of 2003<\/p>\n
with   effect     from        5th    August,     2002      without<\/p>\n
obtaining    permission             of   the    Tribunal    where<\/p>\n
Reference Case No. 12 (C) of 2003 raised for<\/p>\n
granting the workers permanent status of non-<\/p>\n
messengerial position was pending, as such, there<\/p>\n
is no difficulty in concluding that termination of<\/p>\n
the services of the respondent-workmen is in teeth<\/p>\n
of Section 33 of the Act which restrain the<\/p>\n
employer from altering the service conditions of<\/p>\n
the employee to his detriment without obtaining<\/p>\n
the permission of the Tribunal where the dispute<\/p>\n
is pending. In the instant case, the services of the<\/p>\n
respondent-workmen                  having     been   terminated<\/p>\n
during the pendency of Reference Case No. 12 (C)<\/p>\n
of 2003 raised for granting permanent status on<\/p>\n
non-messengerial position without the permission<\/p>\n
of the Tribunal, such termination has been rightly
\n                25<\/span><\/p>\n
set aside by the tribunal with direction to the<\/p>\n
Bank\/Branch          to    reinstate       the   respondent-<\/p>\n
workmen. I do not see any illegality in the Award<\/p>\n
dated 7th December, 2005, which is contained in<\/p>\n
Annexure-4 and impugned in C.W.J.C.No. 13529<\/p>\n
of 2006, the said writ case is, accordingly,<\/p>\n
dismissed. Under Award dated 30th December,<\/p>\n
2006, Annexure-2 in C.W.J.C.No. 10612 of 2007<\/p>\n
the Tribunal has concluded that the respondent-<\/p>\n
workmen completed 240 days of their service as<\/p>\n
part-time Sweeper-cum-Farash in every calendar<\/p>\n
year since 1991 and having recorded such finding<\/p>\n
directed for their regularization in the service of<\/p>\n
the Bank as IVth Grade employee with effect from<\/p>\n
January, 1992. While recording the said finding<\/p>\n
the Tribunal, however, did not record any finding<\/p>\n
about   the    hours       of    work      rendered    by    the<\/p>\n
respondent-workmen              on   the    day(s)    of    their<\/p>\n
engagement.         In    the    circumstances,        without<\/p>\n
recording     finding     about      the    hours     of    work<\/p>\n
rendered by the casual worker on the day(s) of
\n                  26<\/span><\/p>\n
engagement, direction to regularize the services of<\/p>\n
the      respondent-workmen                  appears      to     be<\/p>\n
misconceived.         The   claim       of    the   respondent-<\/p>\n
workmen for regularization may succeed if they<\/p>\n
are able to establish before the Tribunal that they<\/p>\n
served    the     Branch         on   the      day(s)   of     their<\/p>\n
engagement during the working hour on the day<\/p>\n
of their engagement, may be as Sweeper-cum-<\/p>\n
Farash     or     performing          the     duties    of     non-<\/p>\n
messengerial positions, like Water-boy, Cash Kuli<\/p>\n
etc. For the failure of the Tribunal to record<\/p>\n
finding about the hours of work rendered by the<\/p>\n
workmen on the day(s) of their engagement the<\/p>\n
Award dated 30.12.2006 which is contained in<\/p>\n
Annexure-2 and impugned in C.W.J.C.No. 10612<\/p>\n
of 2007 suffers from the vice of arbitrariness and<\/p>\n
is violative of Article 14 of the Constitution of<\/p>\n
India,    is    accordingly,      set       aside   and      matter<\/p>\n
remitted back to the Tribunal to record finding<\/p>\n
about     the    hours      of    work       rendered     by    the<\/p>\n
respondent-workmen               on   the      day(s)   of     their
\n                             27<\/span><\/p>\n
                engagement. C.W.J.C No. 10612 of 2007 is,<\/p>\n
                accordingly, disposed of. C.W.J.C.No. 13529 of<\/p>\n
                2006 has been dismissed, respondent-workmen<\/p>\n
                be reinstated in the service of the Bank\/Branch<\/p>\n
                during the pendency of Reference Case No. 12 (C)<\/p>\n
                of 2003 and be paid wages including arrears<\/p>\n
                throughout as per the notification issued under<\/p>\n
                the Minimum Wages Act from time to time.<\/p>\n
                                        (V.N.Sinha,J.)<\/p>\n
P.K.P.\/A.F.R.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court – Orders State Bank Of India vs The Union Of India &Amp; Ors on 12 October, 2010 IN THE HIGH COURT OF JUDICATURE AT PATNA. C.W.J.C.No. 13529 of 2006. STATE BANK OF INDIA, A BANKING COMPANY, CONSTITUTED UNDER THE STATE BANK OF INDIA ACT, 1955, HAVING ITS CORPORATE OFFICE AT MUMBAI AND […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,27],"tags":[],"class_list":["post-247117","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court-orders"],"yoast_head":"\nState Bank Of India vs The Union Of India &Amp; Ors on 12 October, 2010 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-bank-of-india-vs-the-union-of-india-amp-ors-on-12-october-2010\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Bank Of India vs The Union Of India &Amp; 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