Karnataka High Court
Chief General Manager, Reserve Bank Of ... vs Presiding Officer, Central Government ... on 4 April, 2000
Equivalent citations: ILR2000KAR4356, 2001(3)KARLJ137, (2000)IIILLJ6KANT
Author: V. Gopala Gowda
Bench: V. Gopala Gowda
ORDER V. Gopala Gowda, J.
1. The petitioner Reserve Bank of India (in short, "Bank") has filed this writ petition challenging the legality and validity of the award passed by the first respondent, Central Government Industrial Tribunal-cum-La-bour Court (in short, called as the 'Industrial Tribunal') in Central Reference No. 25 of 1991, dated 29-8-1994 urging various facts and legal contentions.
2. The learned Single Judge, vide his order dated 11-8-1998 with reference to the legal contentions raised in the writ petition and taking into consideration of the challenge of the Award passed by the Industrial Tribunal was placed by the learned Counsel for the Bank that the judgment of the Supreme Court in the Civil Appeals with regard to regulari-sation of services of the ticca mazdoors of the Bank with reference to the case arising from the Bank of Ahmedabad branch in the Civil Appeal Nos. 7407 and 7406 of 1994 and 3232 of 1995, 859 employees of the Bank had been absorbed in the services of the Bank. The second respondent Union filed its rejoinder statement vide Annexure-R1 before the Industrial Tribunal. They have stated that the workmen named in the order of reference are wait-listed after they were found suitable for the posts of mazdoors.
3. The learned brother, Mr. Justice, V.P, Mohan Kumar, vide his order dated 11-8-1998 with reference to the findings recorded by the Award passed by the first respondent Industrial Tribunal and with reference to the interim orders granted by this Court and the directions issued by the Supreme Court in the Civil Appeal Nos. referred to above, the case arising from Ahmedabad and the learned Single Judge felt that the judgment of the Supreme Court concludes the issue raised in this petition. The judgment of the Supreme Court has been distinguished by the learned Counsel Mr. N.G. Phadke appearing on behalf of the second respondent-Union, in view of the rival contentions advanced by the learned Counsel has necessitated an adjudication by a larger bench as it would bound to give rise a spate of appeals. For an authoritative pronouncement on the issue, the case was referred to the Division Bench by the learned Single Judge. That is how this writ petition was listed before this Court and we have heard this petition on merits.
4. The necessary brief facts of the case for the purpose of considering the rival contentions of the parties and to answer the same, the legal issues that have been raised by the parties on the basis of the findings recorded by the first respondent Industrial Tribunal in the impugned Award after adjudication of the industrial dispute between the Bank and the second respondent-Union are stated as hereunder. At the instance of the concerned 32 workmen whose names are listed in the annexure to the order of reference made by the Government of India are extracted in the Award. An industrial dispute was raised by the second respondent with regard to the regularisation of their services as ticca mazdoor employees in the petitioner's-Bank, Bangalore. The said industrial dispute was concpiliated before the Conciliation Office notified by the Union of India. Dispute sincere conciliation efforts made by the Conciliation Officer, the parties could not come to an amicable settlement which has resulted in submission of the failure report by him to the Union of India, in turn it has exercised its power under Section [10(2)(A) to (D)] of the Industrial Disputes Act of 1947 (in short, 'I.D. Act') and referred the points for adjudication to the Industrial Tribunal as per schedule of reference. After receipt of the reference from the Union of India by the first respondent-Industrial Tribunal, the claim statement and counter statements were filed by the respective parties in justification of the respective claim and counter claim of the parties. It is the case of the second respondent-Union that all the 32 concerned workmen named in the schedule to the reference were recruited by the Bank through Employment Exchange for the posts of ticca mazdoors from the dates mentioned against their names and their categories are also shown at paragraph 2 of the Award. It is the further grievance of the second respondent-Union that though the concerned workmen have been performing their duties as permanent workmen for years in the Bank as their nature of work was perennial in nature, they were called as ticca daily wage mazdoors with an object of depriving them of their status and statutory benefits as permanent workmen for which they are entitled in law and they have been illegally treated as daily wage employees. It is also the further case of the Union that the Officers of the Bank who engaged in recruiting and filling up the vacant posts of the Class IV employees in the bank by resorting to direct recruitment, unhealthy and unprincipled practice to certain other categories of junior and part-time employees which action of them is contrary of law and they have adopted dubious methods of selections at the cost of 32 concerned workmen who have been selected as they were qualified and experienced in their respective jobs. It is further alleged that N. Ramalingam and V.V. Srinivas who were part-time sweepers and were juniors to the first ten ticca mazdoors of the present 32 workmen, have been appointed as mazdoors by the Bank. It is alleged that N. Ramalingam had even failed in the interview conducted in the year 1982 by the Bank for the recruitment to the post of ticca mazdoor. In that interview, the first ten of 32 workmen were successful candidates. It is alleged that N. Ramalingam who had failed in the interview was recruited as part-time sweeper and V.V. Srinivas was also appointed as a part-time sweeper in 1983. It has been further alleged that Ramakrishna, S. Rangaraju, K. Ramamurthy and I.K. Singha were directly appointed as peons in 1989 ignoring the concerned 32 ticca mazdoors workmen. It is further stated that Ramakrishna, M. Krish-namraju, D. Nagaraju, Ramalingaiah, V.V. Chandrashekar and E. Manohar who were ticca mazdoors and who were juniors to many of the present 32 workmen were appointed as peons ignoring the rights of the present 32 concerned workmen. The details regarding the list of persons who were given switchover from other categories and appointed as mazdoors by the Bank since 1-9-1982 exhausting the available mazdoor vacancies at the cost of 32 workmen are stated at paragraph 2 of the impugned Award.
5. It is the further case of the Union that the Bank committed an unfair labour practice as defined under Section 2(ra) of the I.D. Act, which are enumerated in the V Schedule of the I.D. Act, depriving their valuable rights, in not regularising them as permanent ticca mazdoors in the Bank though they are entitled for the same. Therefore, the second respondent-Union submitted a representation to the Bank demanding it to absorb them as ticca mazdoors. Since the petitioner-Bank did not respond to its demand, it is stated that it is not justified in not regularising the services of the 32 concerned workmen. Therefore, it is further stated that the 32 concerned workmen were entitled to be regularised in the posts of ticca mazdoors from the dates of their joining the services, with all consequential benefits such as payment of arrears of the pay and other allowances.
6. The Bank filed its detailed Counter Statement contending that the concerned workmen were offered employment on any casual vacancies as and when such vacancies arose, and that their cases have been considered for appointment for regular vacancies as and when it arises. It is further stated that the rights of the concerned ticca mazdoors have not been affected as alleged by them and that the Bank has followed the uniform recruitment policy for recruiting employees in the Bank. There is a scheme framed by the Bank for switchover from other Class IV cadres such as farash, sweepers, etc., to the cadre of peon/mazdoor. They have stated that the switchover scheme facilitates movement of employees from one cadre to another, and in that process, full time and part-time employees get absorption in the cadre of peon/mazdoor. It is admitted that 32 concerned persons were selected and wait-listed for the posts of mazdoors. However, their contention that they were performing permanent nature of mazdoor duties continuously from the dates mentioned against their names was not correct. On the other hand, it is stated that they have been engaged only on the days they report for duty at the office subject to the needs for such engagement on those days, and some of them have not reported for duties for long period in the Bank.
7. The Bank has further denied the various allegations made against the officers of the Bank contending that they are baseless and devoid of merits. It has specifically stated that they have not made any appointments depriving the rights of the concerned workmen for regular appointment. It is stated that switchover policy formulated by the Bank in consultation with recognised Union, they have been implementing the Government of India's reservation policy for SC/ST/PHC/Ex-servicemen in the matter of recruitment in respect of these special categories of employees and in the absence of any eligible candidates belonging to the special category in the ticca mazdoors cadre, the Bank has to resort to direct recruitment. In that process, it was possible that some of the persons already working on daily wage basis might have been superseded.
8. It is also further contended that ticca mazdoors have been resorted to by the Bank with a view to meeting casual absentism or regular permanent employees. The allegation of unfair labour practice made by the Union is denied as wholly untenable in law. With regard to some employees who have failed in the interview conducted by the Bank were subsequently selected and wait-listed for the posts of mazdoors, they were found eligible and were placed above the then existing daily wage employees and they were appointed on regular basis on the basis of the Bank's switchover scheme. In that process it was possible that they would have got absorbed earlier to some ticca mazdoors who were engaged prior to the appointment of the two employees in respect of whom reference is made by the Union in the claim statement.
9. Insofar as Ramakrishna, S. Rangaraju and K. Ramamurthy are concerned, it is stated that they belong to SC community and I.K. Singh belongs to ex-serviceman category. These four persons were sponsored by the Employment Exchange/Sanik Welfare Board for the posts of peons in 1980. Therefore, they have been given preference in appointment to comply with the reservation policy of the Government of India to meet the reservation requirements in the category of SC and ex-servicemen. So also it is contended by the learned Counsel for the Bank that the appointments of six peons mentioned in the Table 3 of the claim state-ment were made after they were enlisted in the waiting list after calling for applications from the existing full-time, part-time daily rated (ticca employees), who have satisfied the eligibility criteria. These six persons were found suitable for the posts of peons and were appointed as per their turn in the waiting list. It is also further stated that the 21 persons were appointed as mazdoors under the switchover scheme mentioned in table 4 of the claim statement were given preference since they were already working in some capacity and therefore they were given the benefit of switchover scheme framed by the Bank. There was no irregularity done by the Bank to defeat the rights of the first party ticca mazdoors as contended by them. Further, it has justified its action in not regularising 32 workmen for the reasons stated in their counter statement which are referred to above. They have contended that no injustice has been done to the 32 concerned workmen as alleged by them in the claim statement. Therefore, they have prayed for rejection of the reference. The second respondent-Union filed its rejoinder statement traversing various averments urged in the counter statement filed by the Bank.
10. As per the pleadings of the parties, the points of dispute referred to in the schedule to the order of reference was treated as a point for determination of the Tribunal. With reference to the above said pleadings and the evidence placed on record before the Tribunal it has proceeded to examine the rival contentions of the parties and answered the points of dispute referred to it by assigning its valid and cogent reasons and passed the award. The same is challenged in this writ petition by the Bank urging the following legal contentions.
11. The learned Counsel for the Bank has urged that the Award passed by the Tribunal is erroneous in law as the same is contrary to the documentary evidence produced before it and further it has erred in directing the petitioner-Bank to evolve a fresh scheme in not taken into consideration the existing scheme as the said scheme entitles the concerned workmen to be absorbed. Therefore, the Award passed by the Tribunal is bad in law. The further ground of attack of the impugned order is that the Tribunal has committed manifest error in ignoring the necessity for the Bank engaging ticca mazdoors due to heavy absentism in the Bank by the Class IV Staff persons in Cash Department and other Departments. Therefore, the engagement of ticca mazdoors was beyond their control. If such persons are regularised in pursuant to the award from the date of their service, it would increase the total number of employees of the Bank itself with retrospective effect and most of the employees will be idling in the Department. Therefore, the Award is vitiated for non-consideration of the aforesaid relevant material evidence on record, thereby the award is vitiated in law for non-consideration of the substantive legal evidence on record in favour of the bank and no reasons are assigned by the Industrial Tribunal for not considering the same thereby the findings are erroneous in law, which are wholly unsustainable in law. Therefore, it is urged that the award is liable to be quashed with regard to the direction issued by the Tribunal and modify the same in terms of the judgment rendered by the Apex Court in the Civil Appeals referred to above.
12. The further ground urged by the learned Counsel for the Bank challenging the impugned Award is that the ticca mazdoors will not get work everyday and they have not worked continuously as they have been provided work as and when their services were required, when the permanent workers of the Bank were absent on account of availing leave. Therefore, the question of granting any permanent employment to the concerned workmen did not arise. Therefore, the Tribunal was wrong in ignoring this relevant material fact and evidence on record when the Award was passed by the Tribunal. Therefore, it is contended that the Award is vitiated in law. Further it is urged that the Award passed by the Tribunal is also not sustainable in law for the reason that it has ignored the uniform recruitment policy of the Bank under the switchover scheme, thereby full-time/part-time employees like Sweepers, Farashes, etc., are considered for absorption by following the switchover scheme framed by the Bank to the peon/mazdoor, and this policy was being followed on All India basis. The Tribunal has ignored this important material evidence on record when the impugned Award is passed and further it has ignored that the Bank was required to comply with the switchover scheme, reservation for SC, ST and ex-servicemen candidates. Therefore, there was no illegality or irregularity committed by the Bank as held by the Tribunal and the further ground urged in assailing the impugned Award is that the Tribunal, without taking into consideration of the material evidence on record has held that the right of regularisation of the concerned workmen was automatic, it was not possible for the Bank because of non-availability of the vacancies, of posts and the regularisation of the services of the concerned workmen could not be done as the same was depending on the availability of the vacancies of the posts in the Bank. This is what has been held by the Apex Court in the civil appeals referred to above. The Tribunal has not followed the said legal principle laid down by the Apex Court with regard to regularisation of the concerned workmen in the dispute. Hence, it is contended by the learned Counsel for the Bank that the Award is liable to be quashed.
13. It is further urged that the Tribunal further erred in not considering the settlement entered into by the Bank with the federation representing majority of Class IV employees under the ID Act, which settlement provides the manner in which mazdoors would have to be regularised in the services of the Bank on all India level which settlement was signed with the recognised Union which represents the majority of the workmen of Class IV employees. The Tribunal could not have brushed aside the law laid down by the Apex Court in Herbertsons Limited v The Workmen of Herbertsons Limited and Others and Tata Engineering and Locomotive Company Limited v Their Workmen2. Therefore, it is urged that the Tribunal has also further erred apart from the said reason given by it in the Award to reject and not to act upon the settlement Exhibit M. 4 which are neither valid nor tenable. It has not given reasons except stating that M. 4 was entered into between the Bank Federation of Workers to defeat the claims of the first party workmen, which prescribes the method of regularisation and the concerned workmen cannot have any better rights than similarly placed ticca mazdoors. Therefore, the award is discriminatory in nature. Therefore, the Tribunal was not competent to pronounce upon the merits of the settlement while passing the Award, in law, as it could not, nevertheless, in the absence of any finding or issue having been framed in that regard, the Tribunal could not have ignored the settlement and granted the relief to the concerned workmen de hors the settlement, as it binds the large number of similarly placed workmen of the Bank. Therefore, the learned Counsel for the Bank submits that the Award is vitiated in law and the same is liable to be quashed. The further ground of attack of the impugned Award is that the Tribunal has committed a grave error in accepting the views of the Supreme Court in State of Haryana and Others v Piara Singh and Others , holding that the action of the Bank is an invidious discrimination in not following and accepting the law laid down in the judgment of the Supreme Court, wherein the Supreme Court has clearly held that the regularisation of temporary employees cannot be automatic, but depends upon the need and the requirement of the Bank, the manner by which persons have got into employment, the availability of vacancies, the burden on the employer, etc. Therefore, the Tribunal has erred in rejecting the contention of the Bank in that regard thereby it has committed an error in law. Hence it is prayed that the award passed by the Tribunal is liable to be quashed.
14. Further it is urged by the learned Counsel for the Bank that the Tribunal has failed to appreciate the fact that implementation of the impugned award would lead to and result in abnormal and available consequences inasmuch as while a scheme under the settlement providing for absorption of ticca mazdoors in a phased manner on All India basis is implemented except Bangalore and the award provides for a separate scheme to be prepared only in Bangalore Office, that too in respect of only 32 concerned workmen, which is contrary to the settlement. The absorption of the workmen was one of the issues pending before the Supreme Court in SLP No. 1899 of 1994. The said SLP was disposed of with a direction to the Bank that the Supreme Court could not have lost sight of the fact that the settlement dated 23-7-1993, arrived at between the Management of the Bank and the Workers Federation covers regularisation of ad hoc daily wage employees and the object of the settlement is to find out a solution to the problem of regularisation of such employees in the Bank. The Apex Court has stated that during pendency of the appeals, affidavit has been filed by Subramanian, the Deputy Manager of the Bank wherein he has stated that in accordance with the settlement dated 23-7-1993, the vacancies in the various cadres of the Bank on All India basis have been determined as against 988 ticca mazdoors, 859 employees were in the process of being absorbed in the service of the Bank, Therefore, the direction given by the Supreme Court regarding regularisation of the employees cannot be withheld and the petitioner will have to treat the workmen, as regular employees with effect from 31-5-1994 from which date they have been regularised as per the settlement. This important aspect of the case of the Bank has not been taken to consideration by the Tribunal. Therefore, the impugned award is vitiated and liable to be quashed and modified suitably in terms of the judgment of the Apex Court.
15. Further it is urged that the direction contained at paragraph 18 in the Award that the wife of the concerned late Sri N. Gauthaman should be given employment on compassionate ground, is beyond the scope of adjudication of the industrial dispute referred to it and further the direction issued by the Tribunal with regard to the arrears payable to the concerned workmen is without jurisdiction and the same is contrary to law. The direction issued by the Tribunal in the impugned Award is superfluous having regard to the settlement at Exhibit M. 4. Therefore, it is contended that the Award is liable to be set aside. Further, the Tribunal has erred in directing the Bank for payment of arrears of salary to the ticca mazdoors for the days on which the mazdoors were not engaged by the Bank as they could not be regularised in their services with retrospective effect as there were no vacancies in the Bank of the respective cadres. The said direction issued by the Tribunal in the Award to the Bank is contrary to the law laid down by the Supreme Court in the Piara Singh's case, supra. Therefore, the learned Counsel Mr. K. Kasturi for the Bank has prayed for quashing the award passed by the Tribunal.
16. The learned Counsel for the Union Mr. N.G. Phadke sought to justify the Award contending that the impugned Award is passed based on the material evidence on record and the law laid down by the Apex Court in the cases upon which he has placed reliance in the judgments reported, which are mentioned as hereunder.--
1. The Bharat Bank Limited, Delhi v The Employees of the Bharat Bank Limited, Delhi ,
2. H.D. Singh v Reserve Bank of India and Others,
3. Chief Conservator of Forests and Another v Jagannath Maruti Kondhare,
4. Bhagwati Prasad v Delhi State Mineral Development Corporation,
5. The Hindustan Lever Limited v Their Workmen ,
6. Air India Statutory Corporation v United Labour Union and Others,
7. 1998 Lab. I.C. 2129,
8. ,
9. Tej Bal and Others v. Director of Education and Others,
10. 1992-II-LLJ-702,
11. Ramesh and Others v State of Karnataka and Others,
12. 1997-III-LLJ (Supp.)-141.
and various other judgments for different propositions with regard to the right of regularisation and entitlement to claim the equal pay to be paid to the concerned workmen and confirmation of their services in the Bank as they have been waiting for a long period and they are entitled for equal pay for equal work and the concept of social justice demands that they were entitled for regularisation and also entitled for continuity of service and making them as permanent workmen is the right to life and livelihood as enumerated under Article 21 and the directive Principles of the State Policy under the Constitution of India and they are also entitled for the arrears from the date of their entitlement. Therefore, the learned Counsel for the Union submits that the Award is not only based on material evidence on record, but also in conformity with the ratio laid down by the Apex Court in various cases referred to above and the same does not suffer from error in law and the Bank has not shown the findings recorded by the Tribunal are not based on evidence. The Tribunal has come to the right conclusions and has answered the points of dispute in favour of the workmen. Therefore, it is not necessary for this Court to exercise its power under Articles 226 and 227 of the Constitution of India to interfere with the impugned Award. Therefore, the learned Counsel for the workmen has prayed for dismissal of the writ petition with costs.
17. After hearing the learned Counsel appearing on behalf of the parties and considering the contentions urged by the respective parties, perused the documents produced by them and also the impugned Award, we proceed to consider the rival submission made by the learned Counsel appearing on behalf of the parties and we proceed to pass the following order.
18. The second respondent Tribunal has adjudicated the industrial dispute between the parties as per the points of dispute referred to it by the Union of India. It has conducted an enquiry under Sections 11 and 15 of the" I.D. Act and answered the points of dispute referred to it in favour of the concerned workmen holding that the petitioner-Bank has not justified in not regularising the concerned ticca mazdoors whose names are mentioned in the order of reference after considering the material evidence on record by assigning valid and cogent reasons. The Tribunal has referred to at paragraph 7 of the impugned Award with reference to the pleadings and the documents produced on record by the parties before it. It has considered the statistics given by the concerned workmen when they have been working as ticca mazdoors which fact is not disputed by the Bank and therefore, Tribunal has recorded a finding in favour of the concerned workmen. Further at paragraph 8 of the Award it has been stated that from the admitted facts set out in para 2 out of 32 workmen, 12 workmen have been working as ticca mazdoors since 1982, 3 have been working since 1983, one has been working since 1984, as many as 13 have been working since 1986 and 4 ticca mazdoors have been working since 1988. It is further held that it is not as if that the 32 workmen were recruited as ticca mazdoors to work in casual vacancies accrued recently. All the ticca mazdoors involved in the reference have been working for a long time ranging from 7 to 13 years as on the date of passing the award by the Tribunal and they have been working as ticca mazdoors even now. With reference to the said factual aspect, the Tribunal further at paragraph 9 of the impugned Award considered the law laid down by the Apex Court reported in the case of The General Secretary, Bihar State Road Transport Corporation, Patna v Presiding Officer, Industrial Tribunal, Patna and Others, which is similar to the case of the concerned workmen who are covered in the order of reference made to the Tribunal and further the learned Presiding Officer of the Tribunal, placed reliance on the law laid down by the Apex Court wherein it has held that "Since it is admitted by the bank that a large number of people have been working as casual labourers for a long number of years, the question whether they were initially appointed regularly or irregularly becomes immaterial for purposes of answering the real question involved in this case as per the points of dispute and the dispute is resolved between the parties and further at paragraph 10 of the Award it has placed reliance upon the judgment of the Supreme Court in the case of Bhagwati Prasad, supra, at paragraph 6 of the said judgment the Apex Court has held stating that "once the appointments of the concerned workmen were made as daily rated workers and they have been allowed to work for a considerable length of time in the Bank, therefore, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualification". With reference to the law laid down in the said case, the learned Presiding Officer of the Tribunal has recorded a finding holding that the law laid down in the said case will all fours applicable to the present case for the reason that all the 32 concerned workmen have the necessary qualification to be appointed as permanent employees in their respective posts.
19. The Presiding Officer of the Tribunal at paragraph 11 of the impugned Award has referred to the judgment of Allahabad High Court in the case of Rajendra Prasad Tamer and Another v Mayo Hall Sports Complex and Others , wherein, the Court held that if a workman is a daily wage worker for 10 years and if he seeks regularisation of his services he cannot be kept on daily wages for indefinite period, then it is violative of Articles 14 and 16 of the Constitution of India and further the Tribunal has also placed reliance on the judgment of the Allahabad High Court in the case of Tej Bal, supra, in which case the Court has held regularisation of daily wage earners, who have worked for a number of years is imperative under the Constitution of India, even if there is no rule for regularisation. The said judgment has been rightly applied by the Tribunal to the facts of the case while passing the Award.
20. Further at paragraph 13 of the impugned award the Tribunal has referred to entry at Sl. No. 10 of the Fifth Schedule to Section 2(ra) under the heading unfair Labour Practice on the part of the employer as enumerated under the I.D. Act which clearly states employing workmen as casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen, is an unfair labour practice. With reference to the said entry in the Fifth Schedule, the Presiding Officer of the Tribunal has recorded a finding holding that the action of the Bank in not regularising the 32 concerned workmen as permanent mazdoors would clearly amount to unfair labour practice. The Tribunal has also considered the legal submissions made on behalf of the Bank placing reliance on the judgment of the Apex Court, in the case of Maharashtra State Co-operative Cotton Growers' Marketing Federation Limited and Another v Maharashtra State Co. operative Cotton Growers' Marketing Federation Employees' Union and Another, which relates to the seasonal employees, therefore the Tribunal has rightly held that the ratio laid down in that case has no application to the facts of the case on hand. Further, reliance is placed by the Bank upon another judgment of the Supreme Court in Piara Singh's case, supra, wherein the Supreme Court has noticed that some initial recruitments were in violation of the norms and rules. In that process, some employees had secured employment through the backdoor method. Under the said circumstances, the Apex Court set aside the judgment of the Punjab and Haryana High Court and held that it would be difficult to sustain the direction of the Punjab and Haryana High Court holding that all those ad hoc employees who have put in one year's service should be regularised, and the direction was given without reference to the existence of vacancies. The law laid down in the said case has been considered by the Presiding Officer of the Tribunal and the observations made in the said judgment at paragraph 51 is also considered wherein the Apex Court has clearly held that if a casual labourer is continued for a fairly long spell, say 2 or 3 years, the presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation, and while doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. The said judgment has been considered and distinguished and applied to this case, relying upon the observations made at paragraph 51 of said judgment and it has rightly held that the concerned workmen have been working a long spell and they have been continued to work in the Bank and therefore the Tribunal has held that concerned workmen in the dispute are entitled to be regularised as permanent workmen in their respective posts.
21. The Apex Court in the case of H.D. Singh, supra, considering various provisions under Sections 2(oo), 2(A), 25-B(2)(a)(ii), 25-F, 25-N and 25-Q and also with reference to the Fifth Schedule, Item No. 10 and Sections 25-T and 25-U at paragraphs 13 and 14 has made certain observations with reference to the confidential circular which are extracted hereunder:
"13. The confidential circular directing its officers that workmen like the appellant should not be engaged continuously but should as far as possible, be offered work on rotation basis and the case that the appellant is badli worker, have to be characterised as unfair labour practice. The Fifth Schedule to the Industrial Disputes Act contains a list of unfair labour practices as defined in Section 2(ra). Item 10 reads as follows:
To employ workmen as 'badlis', casuals or temporaries and to continue them as such for years, with the object of depriving them to the status and privileges of permanent workmen.
We have no option but to observe that the bank, in this case, has indulged in methods amounting to unfair labour practice. The plea that the appellant was a badli worker also has to fail.
14. We thought it necessary to refer to the actual details in the case only to show our concern at the manner in which the employer in this case, the Reserve Bank of India, who should set a model for other employers being a prestigious institution, behaved towards its employees. It must have been his helpless condition and abject poverty that forced the appellant to accept a job on Rs. 3/- per day. Still see how he has been treated. We will not be far from truth if we say that the Bank has deliberately indulged in unhealthy labour practice by rotating employees like the appellant to deny them benefits under the industrial law. It has disturbed us to find that the appellant was denied job because he had become better qualified perhaps the Reserve Bank of India and its Officers are not aware of the grave unemployment problem facing the youth of this Country and also not aware of the fact that graduates, both boys and girls, sweep our roads and postgraduates in hundreds, if not in thousands, apply for the posts of peons. It has been our sad experience to find employers trying to stifle the efforts of employees in their legitimate claims seeking benefits under the Industrial Law by tiring them out in adjudication proceedings raising technical and hyper-technical pleas. Industrial adjudication in bona fide claims have been dragged on by employers for years together on such pleas. It would always be desirable for employers to meet the case of the employees squarely on merits and get them adjudicated quickly. This would help industrial peace. It is too late in the day for this Court to alert the employers that their attempt should be to evolve a contended labour. We do not forget at the same time the fact that it is necessary for the labour also to reciprocate to prevent industrial unrest. In this case, for example, the Bank should have treated the appellant as a regular hand in List II. Instead, the Bank has, by adopting dubious methods, invited from us, remarks which we would have normally avoided".
22. From reading the observations made in the abovesaid paragraphs and the undisputed facts of the case and material evidence on record we have to hold that the Award passed by the Industrial Tribunal is perfectly legal, valid and justified. In addition to the observation and the law laid down by the Supreme Court in the aforesaid case the Supreme Court has laid down the law stating that the Labour Court/Industrial Tribunal can direct the management for their regularisation or making them as permanent workmen and to direct the management to pay equal for equal work.
23. In the following cases referred hereto: The Hindustan Lever Lim-ited's case, supra, paras 3 and 4, The General Secretary, Bihar State Road Transport Corporation's case, supra, para 4, Management of Sone Valley Portland Cement Company Limited v Their Workmen , Randhir Singh v Union of India and Others, Surinder Singh and Another v Engineer-in-Chief, C.P.W.D. and Others, Madan Singh and Others v State of Haryana and Others, Vasanth Rao Roman v Union of India, Municipal Corporation of Delhi v Ganesh Razak and Another, Rajendra Prasad Tamer's case, supra, Government of Tamil Nadu v Tamil Nadu Race Course General Employees' Union and Another , the Apex Court has laid down the law for regularisation of the services of the workmen who have been working continuously for quite a long period and discharging permanent nature of work.
24. The Award passed by the Tribunal directing the petitioner Bank to regularise the service of the concerned workmen and to pay the consequential benefits of the arrears and regular salary and other consequential benefits is in conformity with the law laid down by the Supreme Court in Surinder Singh's case, supra, it has been held that equal pay for equal work run by the casual workers and daily wages basis engaged by Government in different Nehru Yuvak Kendras in the Country performing the same duties as performed by regular Class IV employees against sanctioned posts held, entitled to salary and conditions of service on par with the regular workers and it is not open to Government to deny such benefits to casual workers on ground of their acceptance of employment with full knowledge of their disadvantage which such denial would be violative of Article 14 and practice of the employing casual workers in organisations which are in existence for long (12 years) on ground of the organisations being temporary deprecated and sanction of posts recommended for regularisation of such workers. The above said legal principle has been reiterated by the Apex Court in the case of Surinder Singh, supra.
25. The second respondent-Tribunal, after referring to the various judgments referred to above in the Award, it has held, stating that in view of the law laid down by the Supreme Court in the cases referred to, supra, the Bank could not have kept 32 ticca mazdoors on tender hooks by not regularising their services as permanent workmen and further the Tribunal has also considered with regard to the switchover system as per Exhibit M. 1-directions were given by the Assistant Labour Commissioner, Central as per Exhibit M. 5, directing the Bank not to make any change till the representation of Sweepers/Parashs of the Bank of other second respondent-Union are considered by the Bank. Therefore the existence of vacancies in the Bank were not there is not tenable. The law laid down in the said case has been considered by the Presiding Officer of the Tribunal and the observations made in the said judgment of Piara Singh's case, supra, at paragraph 51 is also considered wherein the Apex Court has clearly held that if a casual labourer is continued for a fairly long spell, say 2 or 3 years, the presumption may arise there is regular need for his services. In such a situation, it becomes obligatory for the concerned authority to examine the feasibility of his regularisation, and while doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person. The said judgment has been considered and distinguished and applied to this case, relying upon the observations made at paragraph 51 of the said judgment and it has rightly held that the concerned workmen have been working a long spell and they have been continued to work in the Bank and therefore the Tribunal has held that concerned workmen in the dispute are entitled to be regularised as permanent workmen in their respective posts.
26. The first respondent-Tribunal, after referring to the various judgments referred to above in the Award, it has held, stating that in view of the law laid down by the Supreme Court in the cases referred to, supra, the Bank cannot be permitted to keep 32 ticca mazdoors on tender hooks by not regularising their services as permanent workmen and further the Tribunal has also considered with regard to the switchover system as per Ex. M. 1-directions were given by the Assistant Labour Commissioner, Central as Ex. M. 5, directing the Bank not to make any change till the representation of Sweepers/Parashs of the Bank of other first respondent-Union are considered by the Bank therefore the Workers' Federation should not be allowed to come in the way of granting the reliefs to the concerned workmen for which they are entitled.
27. The Tribunal, after considering the Exhibit M. 4, the Memorandum of Settlement dated 23-7-1993 upon which much reliance is placed by the Bank stating that it is ready to regularise the services of the concerned workmen on the basis of the said settlement, the same has been considered and held that the said settlement has been entered into by the Management and the Reserve Bank of India Workers' Federation and therefore the same is not binding upon the concerned workmen to the dispute.
28. We have perused the said settlement. The settlement is not a conciliation settlement as required under Section 12(3) of the I.D. Act. Therefore, it shall not have binding effects upon the other workmen as contemplated under Section 18(3) of the I.D. Act. It is only the settlement under Section 12(1) read with Section 18(1) of the I.D. Act and is a Bi-partite settlement binding between the parties to the settlement as the concerned workmen are not members of the said Workers' Federation. Therefore, the terms and conditions of the said settlement are not binding upon the first respondent-Union and its members as it is not a party to the settlement, as it is not a conciliation settlement to bind the concerned workmen under Section 12(3) read with Section 18(3) of the I.D. Act and law declared in this regard by the Apex Court.
29. The learned Presiding Officer of the Tribunal has further recorded a finding with reference to the undisputed facts and the material evidence on record and it has held that one of the casual ticca mazdoors whose name is at Sl. No. 4 in the order of reference was working since 1982, since he is dead and he is represented by his wife Smt. C. Kumari. Therefore the direction is issued to the Bank on the basis of the submission made by the learned Counsel on behalf of the concerned workmen directing the Bank to appoint one of the L.Rs of N. Gouthaman on compassionate ground. The learned Counsel for the Bank submits that the Tribunal could not have issued such direction to it as the appointment of one of the L.Rs of the deceased workman was outside the scope of reference we have considered this submission and we have to hold the Tribunal has inherent power to grant an appropriate relief to the workman after the adjudication of the dispute as it was incidental to the points of dispute referred to it and it has rightly granted the relief to the concerned workman after taking into consideration of the admitted facts and material evidence on record. Therefore, we have to hold that there is no merit in the submissions made in that regard on behalf of the Bank.
30. The Tribunal after taking into consideration of the ratio laid down by the Apex Court in the cases referred to in the impugned Award, it has passed the Award answering the points of dispute in favour of the concerned workmen directing the Bank to prepare a scheme within 8 months from the date of publication of the Award and to pay salary and other allowances at the rates equal to the minimum pay in the pay scales of regularly employed persons in the corresponding cadre and further directed the Bank to pay the arrears from the respective dates of appointment of each of the 31 workmen and further directed the Bank in the case of the deceased Gouthaman that the arrears payable to him till the date of his death shall be paid to his wife Smt. C. Kumari and further it has held that the direction of the Assistant Labour Commissioner, Central as per Exhibit M. 5 and the settlement as per Exhibit M. 4 shall not come in the way for implementation of the Award passed by the Tribunal.
31. In addition to the reasons assigned by the first respondent-Tribunal with regard to the direction issued to the Bank for framing a scheme for regularisation of the concerned 31 workmen in the permanent posts from the date of their entitlement and to pay the arrears, the submission made by the learned Counsel Mr. K. Kasturi appearing on behalf of the Bank is also required to be considered and answered and accordingly we have considered the submission of the learned Counsel and assign the following reasons.
32. We have perused the unreported judgments in Civil Appeal Nos. 7407 and 7406 of 1994 and 3232 of 1995 of Supreme Court upon which the reliance is placed by the learned Counsel for the Bank. In that case the claim of the employees of Bank was the subject-matter of the writ petition before the Gujarat High Court. There was no adjudication of an industrial dispute unlike in the present case on the basis of the material evidence on record and there is no finding, as to whether the employees of that case have discharged their duties as permanent workers though they have been appointed as temporary/ad hoc ticca mazdoor employees. Whereas in the instant case, the parties have adduced evidence before the first respondent-Tribunal. The copies of depositions of the witnesses who wereexamined on behalf of the parties before the Tribimal are made available in the counter statement filed by the second respondent at Annexures-R 3 to R 7. Two witnesses have been examined on behalf of the Bank namely the Staff Officers M.W. 1 Mr. P.P. Subramanya who is the Staff Officer Grade 'A' and M.W. 2 Mr. K. Subramanya who is the Assistant Banking Officer, of the Bank. On behalf of the concerned workmen, the second respondent-Union, has examined 2 witnesses as W.W.I and W.W. 2. The Presiding Officer of the Tribunal no doubt has referred to the evidence on record though he has recorded the finding by accepting the case of the concerned workmen on the basis of the pleadings and with reference to the various judgments of the Apex Court, which are referred to in the Award, holding that they have been working as permanent nature of work as ticca mazdoors in the Bank but the learned Presiding Officer has not appreciated evidence and recorded its reasons in this regard. With a view to avoid further delay, the case need not be remitted back to the Tribunal in view of the law laid down by the Apex Court in the case of Gujarat Steel Tubes v Gujarat Steel Tubes Mazdoor Sabha, for its reconsideration, in this view of the matter with reference to the various legal submissions made by the learned Counsel appearing on behalf of the parties with reference to what date the concerned workmen are required to be regularised and paid the monetary benefits including the arrears of salary and other monetary benefits is considered by us. We have perused the evidence placed on record by the parties for a limited purpose of rinding out the correctness of the findings recorded by the Tribunal and to find out whether the reliefs granted in favour of the concerned workmen is justified or whether the same requires modification of the Award or not as contended by the Bank. After perusing the evidence, on record it is noticed that the concerned first party workmen have been discharging permanent nature of work in the Bank as ticca mazadoors as most of them were engaged in the case Department and further there is evidence on record with reference to the settlement at Exhibit M, 4-between the Bank and its Workers' Federation with regard to the regularisation of the ticca mazdoors. With reference to the said settlement, there is evidence on record in the Ex-amination-in-chief of M.W. 2 who has deposed on behalf of the Bank stating that the above referred settlement has not been implemented in Bangalore centre and further there is evidence on record to show that before the Regional Labour Commissioner, as per Exhibit M. 5 on the representation as per Ex. M. 6, the Bank was not prepared to regularise the services of the ticca mazdoors involved in this reference, this positive and substantial evidence has been elicited in the cross-examination of M.W. 2, wherein he had stated that the Bank opposed the claims of the concerned workmen in Exhibit M. 6 before the Regional Labour Commissioner (in short, referred to as 'RLC'). The further evidence was elicited on record on behalf of the concerned workmen who have submitted representation as Exhibit M. 6. It is further admitted by the Bank's witness M.W. 2 that in the other centres of the Bank no industrial dispute was raised by the workmen regarding regularisation of ticca mazdoors and further admitted in the cross-examination of M.W. 2 that all the 32 concerned workmen involved in the industrial dispute have been medically examined. There is evidence on record before the Tribunal on behalf of the workmen, the General Secretary of the second respondent-Union Mr, Babu Ravishankar was examined wherein he has stated that the second respondent-Union had written letter to the Bank demanding for regularisation of the concerned workmen vide its letter dated 8-1-1990, the Bank has not regularised their services, therefore they raised an industrial dispute before the Conciliation Officer and further stated that Exhibit M. 4 settlement is not binding on the members of the second respondent-Union, as the concerned workmen are either members of the Workers' Federation or membership subscription amount was deducted out of their wages and paid to the Federation who is the signatory to the settlement and as also in respect of Ex. M. 1 and Ex. M. 2. Nothing has been elicited in the cross-examination of the said witness by the Bank Counsel except answering in the cross-examination of W.W. 1 that the second respondent-Union was not recognised by the Bangalore Office of the Bank and it is also not recognised at All India level and he has answered that the Reserve Bank of India Workers' Federation is the recognised Union at All India level with whom they have entered into settlement the back wages are not covered. In view of the above said evidence, we have to record a finding that the settlement is a private settlement between the parties to it but is not a conciliation settlement to have the statutory binding effect upon all the workmen of the Bank. Therefore, we hold that the settlement is not binding on the concerned workmen of the second respondent-Union. The Supreme Court, dealing with the case of the workmen who have approached the Gujarat High Court in the writ petition, the direction was given to the Bank at Gujarath to regularise these their services by absorbing them as ticca mazdoors which order was affirmed by the Division Bench and the said judgment was challenged before the Supreme Court in the Civil Appeals referred to above. In this case, the Tribunal has recorded a finding on the basis of the legal evidence on record and on the basis of the submissions of the learned Counsel for the parties and it has held that the workmen are entitled to be regularised as they have rendered permanent nature of work continuously for over a long period in the Bank and therefore they are entitled to be absorbed after preparing a scheme within 8 months from the date of publication of the Award. The submission on behalf of the Bank that the direction given by the Tribunal in the impugned Award to frame the scheme within 8 months from the date of publication of the award and further direction to it to pay the salary to the workmen and also other allowances of the rates equal at the minimum pay in the pay scales if regularly employed persons in the corresponding cadres is not tenable in law- It is further contended that the direction was issued to the Bank to pay the arrears from the date of appointment of each one of the 32 workmen. The Bank is aggrieved of the said direction contending that the Supreme Court in the SLP appeal referred to above in the case of Tulsi Bai and Another v The Reserve Bank of India and Another, wherein the Apex Court has considered the Memorandum of Settlement at Exhibit M. 4 and granted the relief of regularisation with effect from 23-7-1993. The terms of settlement are referred to in that judgment. With reference to the said terms and conditions of settlement and various other aspects, the Supreme Court has directed the bank as hereunder:
"We cannot lose sight of the fact that the settlement dated July 23, 1993 arrived at between the Management of the Bank and the Employees' Union, covers regularisation of ad hoc daily wage employees including ticca mazdoors in the various centres of the Bank in the country, the object of the settlement is to find a solution to the problem of regularisation of such employees in order to secure industrial peace and harmony. A direction for regularisation in respect of some employees in one centre of the Bank which runs contrary to the said settlement is bound to create dissatisfaction and disharmony amongst other employees similarly situate who are not granted similar relief. This would defeat the object of the settlement.
For the reasons aforementioned the directions given by the High Court regarding regularisation of the petitioners cannot be upheld and the petitioners will have to be treated as having been regularised with effect from May 31, 1994, from which date they have been regularised as per the settlement dated July 23, 1993".
The said direction was issued in the appeals of the Bank by the Apex Court with reference to the facts of that case placing reliance upon the settlement, which was entered into between the parties during the pendency of the dispute. Whereas in this case, the first respondent-Tribunal has adjudicated the existing dispute between the parties with reference to the claim regarding the absorption of the concerned workmen and regularising their services. On the basis of the material evidence on record and the law laid down by the Apex Court the Tribunal has also considered the settlement upon which much reliance is placed though the said settlement was not binding upon the concerned workmen for the reasons stated supra, and further the Tribunal has also considered the directions issued by the Assistant Labour Commissioner, Central as per Ex. M. 5 wherein he has stated that the settlement at Ex. M. 4 shall not come in the way of implementation of the Award passed by the first respondent-Tribunal for the reason that the settlement was entered into by the Bank and Workers' Federation on 23-7-1993 during pendency of the industrial dispute of the concerned workmen before the first respondent-Tribunal. The points of dispute which was referred to the Tribunal was as to whether the petitioner-Management Bank was justified in not regularising the services of the concerned workmen. Clause 7 of the said settlement deals with the filling up of the vacancies wherein it is stated that the existing separate categories of employees of the Bank for filling up the vacancies that would arise in future in the Bank of the categories referred to above, then the Bank was required to draw the waiting list of service staff employees in accordance with their ranking and their services were required to be regularised as permanent employees, from the list that was prepared. Therefore we have to record a finding with reference to the settlement that the concerned workmen services could not have been regularised and for this reason the Tribunal was required to adjudicate the dispute of the concerned workmen on the basis of the claim and the material evidence on record. In the instant case, the Tribunal has already recorded a finding that some of the concerned workmen have been working from 1982, 1983, 1984, 1985, 1986 and 1988 continuously discharging permanent nature of work. The concerned workmen of tbis industrial dispute were wait-listed, after their selection and their services have been utilised by the Bank. If it were to be the case of the Bank that the concerned workmen were not discharging permanent nature of work, they could have produced the documents which are in their custody and possession to establish their case to rebut the claim of the workmen to show that they have been continuously working by discharging permanent nature of work on par with the permanent employees of the Bank and to further show that they have been intermittently engaged by the Bank against the casual vacancies caused when the permanent ticca mazdoors had availed leave. The Bank should have produced the Attendance Registers. Acquittance Registers, Leave Registers of permanent employees, against whom casual vacancies the concerned workmen alleged to have been engaged, which are in their custody to disprove the claim of the workmen which has not been done. Therefore, the Bank has withheld the material documentary evidence without any valid reason, hence the Tribunal could have drawn adverse inference for withholding evidence in view of the law laid down by the Supreme Court in the case reported in 1968 SC 1342 (sic) and therefore the Tribunal has recorded a finding that the concerned 32 workmen have been working continuously as permanent employees in their respective posts for quite a long time. The Tribunal has further proceeded to give further direction as contained in the award having regard to the undisputed fact of the concerned workmen who have been working continuously in the Bank. Therefore, the Tribunal has held that the workmen have justified their claim for their regularisation in the posts of ticca mazdoors and other respective posts placing reliance on the judgments of the Apex Court referred to in the impugned award. In view of the categorical findings recorded by the Tribunal on basis of the evidence but it has not recorded its reasons in support of its conclusions, we have considered the evidence and we have supplemented our reasons to the Award passed by the Tribunal in this judgment with a view to avoid further delay in remitting the dispute to the Tribunal for its reconsideration, and to record its reasons in support of its findings and conclusions, we have examined the Award with reference to the evidence on record, legal contentions urged by the learned Counsel for the parties and we have recorded our reasons having regard to the peculiar facts of this case particularly in the background of the settlement upon which the reliance is placed by the Bank and further it has not adduced documentary evidence to show that the claim of the workmen was not tenable and justify their action into regularising the services of the concerned workmen. For the reasons recorded by us in the preceding paragraphs of this judgment we have to hold that judgment rendered in the Civil Appeals by the Apex Court referred to in the judgment are not applicable to the facts of this case for more than one reason which are recorded by us in this judgment.
33. Further we have to record a finding holding that the settlement upon which reliance is placed by the Bank is not binding upon the members of the second respondent-Union for the reason that the same has been arrived at between the parties during the pendency of the industrial dispute before the first respondent-Tribunal for which it is not a party and it is not a conciliation settlement under the provisions of the I.D. Act. Notwithstanding this fact, the terms and conditions of the settlement are not binding upon the members of the second respondent-Union including the concerned 32 workmen. At the instance of the second respondent-Union the industrial dispute was referred by the Government of India in the first respondent Tribunal for adjudication of the existing industrial dispute on the basis of the claim made by the Union which is adjudicated by the first respondent-Tribunal after giving particulars of the employment of the concerned workmen to establish their respective cases by producing positive and substantive evidence on record to substantiate their claim. The petitioner-Bank has failed to produce the evidence to show that the claim of the concerned workmen is not justifiable for the reason that their services have been engaged only against the casual vacancies occurred on account of the permanent workmen availing leave and further the Bank has failed to prove that the concerned workmen have not rendered continuous service from the date of their engagement as mentioned in the schedule to the points of dispute referred to by the Government. Therefore, the first respondent-Tribunal has recorded a finding of fact on appreciation of material evidence on record considering the judgments of the Supreme Court holding that the concerned workmen have rendered continuous permanent nature of work for quite a long time is a finding of fact, but however the Tribunal has not recorded its reasons in support of the findings and the conclusions arrived at by the Tribunal. For this reason we have supplemented our reasons to the award of the judgment in this judgment in support of the findings recorded by the Tribunal.
34. The learned Counsel appearing on behalf of the Bank has not shown that the findings recorded by the Tribunal are neither shown to be erroneous nor it is not possible for us to take a view on the basis of the material evidence on record that the claim of the concerned workmen have not rendered continuous service in the absence of documentary evidence on record. In this view of the matter, the submission on behalf of the Bank that the direction issued by the Tribunal to frame a scheme and regularise the services of the concerned workmen without taking into consideration of the terms and conditions of the settlement at Exhibit M. 4 and the judgment of the Supreme Court is not tenable in law for the reason that the claim of the concerned has been adjudicated and the findings is recorded in their favour. Therefore, the direction issued by the Supreme Court in the Civil Appeals referred to supra upon which reliance is placed by the Bank is entirely different from the case on hand. Therefore, it may not be proper for us to modify the Award as prayed by the petitioner-Management to regularise the services from the date due as indicated in the Supreme Court judgment.
35. Having regard to the facts and circumstances of this case and the direction issued by the first respondent-Tribunal to do the substantial justice to both the parties, it would be proper and appropriate for this Court to modify the Award directing the Bank to regularise the services of the concerned workmen who have been working from 1982, 1983, 1984 and 1986 with effect from 1990 insofar as 4 ticca mazdoors who are working from 1988 to be regularised with effect from 1993 with all the consequential monetary benefits including the arrears of salary payable to them in the posts on par with the permanent workmen of the respective posts for which they are entitled to be regularised and also the consequential service condition benefits as provided in law. The aforesaid modification shall be read into the operative portion of the Award passed by the Tribunal. Insofar as the deceased workmen Mr. N. Gouthaman is concerned the award is undisturbed, except the consequential benefits including arrears shall be paid to his L.Rs as directed by the Tribunal taking into consideration he was entitled to be regularised in the permanent post of mazdoor from the year 1990.
36. With the above said observation and modification of the Award, we dispose of this petition.