Karnataka High Court
Indian Bank vs Sri S Vishwanatha Rao on 7 November, 2012
Bench: Chief Justice, B.V.Nagarathna
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IN THE HIGH COURT OF KARNATAKA AT BANGALORE
DATED THIS THE 7TH DAY OF NOVEMBER 2012
: PRESENT :
THE HON'BLE MR.VIKRAMAJIT SEN, CHIEF JUSTICE
AND
THE HON'BLE MRS.JUSTICE B.V.NAGARATHNA
WRIT APPEAL No. 312 / 2012 (L-RES)
BETWEEN :
INDIAN BANK
4TH FLOOR, EAST WING, RAHEJA TOWERS,
NO.26-27, M G ROAD, NOW REPRESENTED
BY DY. GENERAL MANAGER
... APPELLANT
( BY SRI A KESHAVA BHAT & K SRIKRISHNA, ADVS. )
AND :
SRI S VISHWANATHA RAO
S/O SRI D SADASHIVA RAO, AGED ABOUT
44 YEARS, R/O NO.2393, 10TH MAIN
E BLOCK, II STAGE, RAJAJINAGAR
BANGALORE-560010
... RESPONDENT
( BY SRI V S NAIK, ADV., FOR C/R1. )
WRIT APPEAL FILED U/S 4 OF THE KARNATAKA
HIGH COURT ACT PRAYING TO SET ASIDE THE ORDER
PASSED IN WRIT PETITION NO. 10717/2008 (L-RES) DATED
21/10/2011.
THIS WRIT APPEAL COMING ON FOR PRELIMINARY
HEARING THIS DAY, CHIEF JUSTICE DELIVERED THE
FOLLOWING:
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JUDGMENT
Vikramajit Sen, CJ (Oral) This appeal assails the order of the learned Single Judge who, after detailed consideration, found no error in the impugned award and, therefore, dismissed the Writ Petition. The facts of the case are not in dispute. The Respondent had been engaged as the personal driver of the then Assistant General Manager of the Appellant Bank in the year 1990-91 and has worked eversince then. A settlement came to be arrived at on 23.7.1994, the salient terms of which read as follows:
"I. Personal Drivers to Sub-staff:
1. That all the personal drivers already engaged by the Bank's executives/senior officials for driving cars provided by the Bank as on the date of the Settlement and on completion of a minimum of 5 years of uninterrupted service in the capacity of personal drivers will be considered as a one time measure for the post of Sub-staff subject to fulfillment of other norms and conditions laid down herein below; and their seniority for the purpose of considering for appointment as permanent Sub-staff would : 3 : be reckoned from the date of their initial engagement of personal driver.
2. That they must have live registration with Employment Exchange.
3. That the personal drivers eligible for the post of Sub-staff will be treated on par with the persons deployed in the leave vacancies of Sub-staff in various branches of the Bank and shall be governed in terms of settlement dt. 18.01.1988.
4. Any personal driver who does not accept the offer the Sub-staff post will not be considered again for the post of Sub-staff in future."
2. As his services were terminated even after completion of five years of service, the Respondent raised a dispute under Section 10(2A)(d) of the Industrial Disputes Act in which the following issues were raised:
"Whether the action of the management of Indian Bank in terminating the services of Shri S.Vishwanatha Rao, Ex-Casual Driver Cum Peon is legal and justified? If not, what relief is the concerned workman entitled to?: 4 :
Whether the demand for absorption of his service in terms of the settlement dated 23.07.1994 is justified? If so, what relief is the concerned workman entitled to?"
The following award was passed:
"The management is directed to absorb the services of the first party workman either as a sub staff or as a driver w.e.f. the date he completed 5 years of service as Personal Driver under various officers of the bank from the date of his initial appointment as a Personal Driver. He shall be given all service benefits from the date his services were absorbed as a sub staff or as a Driver. No costs."
It is this award which was challenged before the learned Single Judge. Noting the terms of the Settlement and that the Respondent had completed 5 years of service and that the Personal Drivers who were junior to him in terms of the orders of service viz., Hattigowda and Venkatesh, had been absorbed, the learned Single Judge had dismissed the Writ Petition.
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3. At the threshold, we have pointed out to the learned counsel appearing for the appellant that we were prima facie of the view that there is no merit in the Appeal. Nevertheless, the entire Appeal was argued essentially by reiteration of the arguments raised on behalf of the Bank before the Industrial Tribunal as also the learned Single Judge. It is also argued that the Settlement does not envisage absorption of the Respondent in service. It is stated that Hattigowda was appointed on 16.5.2008 under different circumstances. On the other hand, it has been pointed out that the applications of Sri Hattigowda as well as Venkatesh are of the very same date as the date of appointment and that the Bank has adopted a capricious and discriminatory manner in appointing its employees.
4. Clause (i) clearly discloses that the Settlement did not contemplate that, to get the benefits of Settlement, a person should have completed 5 years as on 23.7.1994. The language discloses that employment was also to be granted if in future 5 years was completed. In any event, there is absolutely no valid explanation : 6 : forthcoming as to why the persons similarly placed as the Respondent, inasmuch as they were also Personal Drivers of senior bank officials, have been granted employment while that has been declined for the Respondent. We also do not find it a mere coincidence that Hattigowda and Venkatesh have been employed within one month of the passing of the Award in favour of the Respondent. This is why we think that the manner in which these two persons were absorbed is capricious and discriminatory. The Appeal is accordingly devoid of all merit.
5. The effect of challenge was for no justifiable reason. The Award passed in favour of the Respondent is that, the Bank has been made liable to back wages which would have been avoided at least for the subsequent period i.e., from April 2008 to the present date. Moreover, the Respondent has been burdened with costs of engaging an Advocate before the learned Single Judge as well as before us. We reemphasize that the very termination of the services of the Respondent was illegal. It is not merely a question of compensating the : 7 : Respondent for the expenses thrust upon him but also the question of wastage of public funds.
6. In these circumstances, while dismissing the Appeal, we direct the appellant Bank to pay costs of Rs.50,000/- to the Respondent. Half of the costs should be deducted from the salary of the bank officials who had directed filing of the present Appeal, giving the benefit of doubt to the Bank as regards the filing of the futile Writ Petition. The Award be given effect to within 30 days from today and costs be also paid within this period in the manner mentioned above.
In view of the dismissal of the Writ Appeal, I.A.Nos.1 & 2/2012 would not survive for consideration.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE ckc/-