Madras High Court
N. Veerappan vs The Chairman And Managing Director on 19 September, 2013
Author: M.Venugopal
Bench: M. Venugopal
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED :19/9/2013
C ORAM
THE HONOURABLE Mr. JUSTICE M. VENUGOPAL
W.P.No.16147 of 2005
N. Veerappan ... Petitioner
Vs
1. The Chairman and Managing Director
Punjab & Sind Bank
Bank House
21 Rajendra Place
New Delhi.
2. The General Manager (Personnel)
Punjab & Sind Bank
Bank House
21 Rajendra Place
New Delhi.
3. The Zonal Manager
Punjab & Sind Bank
Zonal Office I Floor
Spencer Towers
770 A Anna Salai
Chennai 2.
4. The Chief Manager
Punjab & Sind Bank
770 A Anna Salai
Chennai 2. ... Respondents
PRAYER: Writ Petition filed under Article 226 of Indian Constitution for a writ of mandamus to direct the respondents to regularise the services of the petitioner.
For Petitioner ... Mr.B.Ravi
for Mr.R.Subramaniam
Mr.V.Bhiman
M/s.Sampath Kumar Associates
for R.R.1 to 4.
- - - - - -
O R D E R
The Petitioner has filed the instant Writ of Mandamus praying for issuance of an order by this Court in directing the respondents to reglarise his services.
2. The Summary of Facts:-
The petitioner was working as Driver to drive the Zonal Manager's car from March 1983. The Third Respondent/Zonal Manager, Punjab & Sind Bank, Chennai was provided with an official car. As per the Staff Circular No.1975 dated 4/11/1989 all the Officers of Scale IV and above were provided with Bank car. Also, the Officers of Scale V and above were allotted with Bank Driver/reimbursement of the Driver's salary, as the case may be. The Drivers wages were paid in terms of Bank guidelines. As a matter of fact, the petitioner is working in the Bank as Driver from March 1983 onwards without any break till date. Indeed, the Third Respondent/Zonal Manager, Madras, recommended the petitioner's name for absorption into permanent rolls of the Bank on numerous occasions (including the letter dated 28/11/2001).
3. The Head Office of the Personnel Department of the First Respondent Bank, with a view to absorb the Petitioner in regular service sought personal details through letters dated 19/5/1997 and 7/6/1997 to which the third respondent sent recommendations for permanency of the petitioner's service through letters dated 19/7/1997, 9/1/1998, 20/2/1999, 12/8/1999, 11/10/1999, 7/1/2000, 21/11/2000, 9/4/2001, 18/8/2001, 10/10/2011 and 28/11/2001 respectively. Since there was no response for his earlier communications, he projected another application for absorption. Presently, he is driving a car provided to the Chief Manager of the Bank at their Mount Road Branch since July 2003.
4. In as much as the respondents had considered the absorption of the petitioner in the permanent rolls of the Bank, he was perforced to file the present writ petition.
5. The gist of the counter filed by the Fourth Respondent (for himself and on behalf of other Respondents):-
The petitioner was engaged as the personal Driver of the car of Zonal Manager of the First Respondent Bank, Zonal Managers as Scale V Officers and above were reimbursed for the expenses incurred by them in respect of the Personal Drivers whom they could engage in their discretion.
6. The provisions for reimbursement of the expenses incurred by the Bank Officials for keeping Drivers to drive the cars belonging to the Bank and allotted to these Officials would change from time to time. The Driver's salary would be paid by the official concerned personally. Then, he would submit the bill to the Bank and the Bank would reimburse the bill amount. Even the provision of a car by the Bank to its official was not permanent. The petitioner was the personal Driver of the Third Respondent and in January 2004, the then Zonal Manager dispensed with his services.
7. During July 2004, Scale IV Officers were provided with Bank's cars as per the guidelines of the Bank's Head Office and he, as Chief Manager, engaged the services of the petitioner since 24th July 2004. Through the Head Office Circular of the Bank dated 26/4/2005 provision for reimbursement of Driver's salary paid by the Fourth Respondent to his Driver viz., the petitioner was stopped and therefore, he dispensed with his services on 7/5/2005.
8. Continuing further, the absorption of any Driver in a permanent Roll of the Banks staff would be as per Central Government's Guidelines. As on date, no such guidelines was issued. The Respondents had absolutely no power to absorb the petitioner or any Driver in his position, in the Rolls of the Bank staff by regularising his services in any manner.
9. The Petitioner's contentions:-
The Learned Counsel for the Petitioner contends that the Respondents should have taken into account of a very vital fact that the Petitioner was working in the Bank since 1983 March onwards without any break (till date i.e., filing of the writ petition) for a period of 23 years.
10. The Learned Counsel for the Petitioner submits that the Respondents ought to have seen that though the Petitioner was designated only as a Personal Driver, he was driving only official car of the Bank to the Third Respondent/Zonal Manager at Madras.
11. The stand of the Petitioner is that the Zonal Managers were entitled for a Bank Car and a Bank Driver in terms of the Circular No.1975 dated 4/11/1989.
12. On behalf of the Petitioner, an argument is projected to the effect that the wages paid to the Petitioner were determined by the Bank in as much as the car was driven for the Third Respondent in his official capacity. According to the Petitioner, his name was recommended by the Third Respondent for absorption on various occasions for further post of the Zonal Manager/Chief Manager at Chennai and to provide them with the car from the Bank was that of permanent in nature and as such, there was always a requirement/vacancy for the post of Driver.
13. The Learned Counsel for the Petitioner submits that since Petitioner possessed requisite qualifications to be appointed as a Driver of the Bank and also he was appointed as a Driver during March 1983, the Respondents in any event should have confirmed his services in their permanent Rolls.
14. It is further pleaded on behalf of the Petitioner that he cannot approach the Labour Court seeking absorption under Section 2 (k) of the Industrial Disputes Act, 1947 since only a Union can raise the dispute relating to the service conditions and also that he is not a Member of the Union.
15. Lastly, the Learned Counsel for the Petitioner strongly contends that all the Zonal Offices and Head Office Departments were informed through a Circular in Reference No. P & D/3492/2005 - 2006 dated 26/4/2005 that the First Respondent decided to withdraw the Drivers' facility to Scale IV Officers and except Scale IV and Zonal Managers and as such there is an imminent threat of his services being terminated.
16. Flimpse of order/case laws:- The Learned Counsel for the Petitioner cites the order of this Court dated 22/10/2010 in W.P.No.15853/09 between P.SUDHAKAR AND 1. THE CHAIRMAN AND MANAGING DIRECTOR, NO.66 INDIAN BANK (HO) RAJAJI SALAI, CHENNAI 1 and 2 others, wherein in paragraph 4, it is observed as follows:-
"Per contra, the learned senior counsel for the respondents Bank would attempt to justify the impugned order by contending that the appointment of the petitioner was on the basis of Settlement under Section 2 (p) read with 18 (1) of the Industrial Disputes Act, 1947 between the Management of Indian Bank and the recognised federation of Indian Bank Employees' Unions in the post of Peon cum Driver, as per which, all the personal drivers engaged by the Bank's executives/senior officials for driving cars provided by the Bank are eligible to be considered for post of sub-staff only on completion of minimum 5 years of uninterrupted service in the capacity of personal driver. As the petitioner was later-on found to be having break of service for three years between 27/7/2000 and 31/12/2003 and as he did not complete 5 years uninterrupted service as on the date of his appointment to the post of Driver-cum-Peon on regular basis and his appointment order was hence, withdrawn. The learned Senior counsel for the respondents has also in support of such contention, produced the copy of 18 (1) settlement.
17. Added further, in the aforesaid order of the writ petition, at paragraph 7, it is observed and laid down as under:-
"Be that as it may, the respondents must have been before withdrawing his appointment order given an opportunity to say about the break of service as referred to above. The learned counsel for the petitioner has strenuously argued that break of service from 27/7/2000 to 31/12/2003 is not due to any voluntary act on the part of the petitioner, but due to the closure of the zonal office on account of restructuring the same. As a matter of fact, the petitioner has explained so in his letter dated 31/3/2006 submitted to the bank seeking appointment on regular basis. It is also further represented by the learned counsel for the petitioner that other similarly placed person's like that of the petitioner particulars of whom are not available, have been considered for appointment on regular basis without insisting for 5 years of uninterrupted service. In my considered view, the petitioner is considering the arguments advanced on the side of the petitioner, entitled to get an opportunity of being personally heard before his appointment order being withdrawn for the reasons stated herein. Notwithstanding the contentions raised by the learned senior counsel for the respondents, the impugned order passed by the third respondent withdrawing the appointment order without an opportunity to the petitioner is held to be in violation of principles of natural justice and cannot be allowed to stand and hence, is set aside."
18. The Learned Counsel for the Petitioner, seeks in aid of the Division Bench Order dated 29/10/2008 in Writ Appeal Nos.933 to 935 of 2008 between PUNJAB AND SIND BANK, rep. BY CHAIRMAN & MANAGING DIRECTOR, BANK HOUSE, 21 RAJENDRA PLACE, NEW DELHI AND 2 OTHERS Vs. AMRIT THAKUR AND 2 OTHERS, whereby and whereunder, in paragraph Nos.11 and 12, it is observed and held as under:-
"11. In the present cases, we do not find any illegality in the impugned common order dated 30/8/2007 in Writ Petition Nos.12642, 13875 and 13876 of 2004, insofar as it relates to the direction issued by the learned single Judge to regularise the services of the respondents-writ petitioners. However, we agree that no such regularisation can be made in the absence of permanent vacancies; such regularisation can be made only against the existing permanent vacancies of sub-staffs or the future vacancies, having regard to the reservation of the post for Scheduled Caste/Scheduled Tribe categories as per the Government of India guidelines.
12. In the facts and circumstances, having regard to the stand taken by the third appellant-Zonal Manager of the Bank in the affidavit dated 24/10/2008, we direct the appellants-Bank to fill up the existing and future permanent vacancies of sub-staffs by considering the case of the respondents-writ petitioners and other similarly situated persons working on temporary basis, having regard to the reservation of the post of SC/ST categories as per the Government of India guidelines with a further direction to fill up the existing vacancies within three months from the date of receipt/production of a copy of this judgment."
19. The Learned Counsel for the Petitioner invites the attention of this Court to the decision of the Honourable Supreme Court in WORKMEN OF BHURKUNDA COLLIERY OF CENTRAL COALFIELDS LTD Vs. BHURKUNDA VOLLIERY OF CENTRAL COALFIELDS LTD {(2006) 3 SUPREME COURT CASES - 297}, wherein at special page No.302, in paragraph Nos. 17 and 18, it is observed and held as follows:-
"This Court in State of Haryana v. Piara Singh (1992) 4 SCC 118 held that "So far as the work-charged employees and casual labour are concerned, the effort must be to regularize them as far as possible and as early as possible subject to their fulfilling the qualifications, if any, prescribed for the post and subject also to availability of work. If a casual labourer is continued for a fairly long spell # say two or three years - a presumption may arise that there is regular need for his services. In such a situation, it becomes obligatory for the authority concerned to examine the feasibility of his regularization. While doing so, the authorities ought to adopt a positive approach coupled with an empathy for the person.
Also, In the matter of regularization, the main concern of the Court is to see that the rule of law is respected and to ensure that the executive acts fairly and give a fair deal to its employees consistent with the requirement of Articles 14 and 16 of the Constitution of India. The State being a model employer should not exploit the employees nor take advantage of helplessness and misery of either the unemployed person or the person concerned, as the case may be. ... Where a temporary or ad hoc appointment is continued for long, the Court presumes that there is regular need for his services on a regular post and accordingly considers regularization.
18. It is also our bounden duty to give expression to the legislative intention for creating a healthy environment leading to proper understanding and cooperation and in true sense a partnership between the employers and the employees in cases of industrial disputes."
20. Respondents' submissions:- Repelling the contentions of the Learned Counsel for the Petitioner, the Learned Counsel for the Respondent/Bank forcefully submits that the Petitioner was engaged as a Personal Driver of the car of the Zonal Managers of the First Respondent/Bank, Zonal Managers as Scale V Officers and above were reimbursed by the expenses incurred by them in respect of their Personal Drivers, whom they can engage by exercising their discretion and the provisions for reimbursement of the expenses incurred by the Bank officials for keeping Drivers to drive the cars belonging to the Bank and allotted to these officials would change from time to time and in fact, the Drivers' salary would be paid by the official concerned and he would submit the bill to the Bank and the Bank would reimburse the bill amount. Moreover, the provision of a car by the Bank to its Officials was not permanent and also that the Petitioner was the Personal Driver of the Third Respondent in January 2004 and the then General Manager dispensed with his services and in July 2004, when Scale IV Officers were provided with Bank cars as per the guidelines of the Banks Head Office, the Fourth Respondent/Chief Manager, engaged the Petitioner's services from July 2004 and through a Circular of the Head office of the First Respondent Bank dated 26/4/2005, the provision for reimbursement of the Driver salary paid by the Fourth Respondent to his Driver viz., the petitioner was stopped and as such his services were dispensed with on 7/5/2005.
21. Finally, it is the stand of the Respondents that the absorption of any Driver in a permanent Roll of the Bank Staffs would be as per the Central Government guidelines and as on date, no such guidelines was issued and therefore, the respondents have no power to absorb the power or any Driver in his position, in the Rolls of the Bank staff by regularising his services in any manner.
22. The Learned Counsel for the Respondents 1 to 4 cites the decision of the Honourable Supreme Court in RAMAKRISHNA KAMAT AND OTHERS Vs. STATE OF KARNATAKA reported in AIR 2003 SC at page 1530, wherein at special page Nos.1531 and 1532, at paragraph Nos. 7 and 8, it is observed and laid down as follows:-
"7. It is not in dispute that the appellants were appointed on payment of honorarium of Rs. 200-300 per month by School Betterment Committees and in some cases by the Presidents of Mandal Panchayats; the appointment orders do not indicate that they were made either by Zilla Parishad or officers of the State Government against any sanctioned post. We repeatedly asked the learned counsel for the appellants on what basis or foundation in law the appellants made their claim for regularization and under what rules their recruitment was made so as to govern their service conditions. They were not in a position to answer except saying that the appellants have been working for quite some time in various schools started pursuant to resolutions passed by Zilla Parishads in view of the Government orders and that their cases need to be considered sympathetically. It is clear from the order of the learned single Judge and looking to the very directions given a very sympathetic view was taken. We do not find it either just or proper to show any further sympathy in the given facts and circumstances of the case. While being sympathetic to the persons who come before the court the courts cannot at the same time be unsympathetic to the large number of eligible persons waiting for a long time in a long queue seeking employment. The learned Single Judge in this view, rightly so in our opinion, held that "in such situation it is difficult to accept the plea of the petitioners that they were appointed against regular post and appointment orders would clearly indicate that the appointment of the teachers was purely temporary and on honorarium basis subject to its approval by the State Government and petitioners have not produced any document to show that their appointment has been approved by State Government. Hence, petitioners are not entitled to regularization. Since petitioners have worked continuously as teachers, the services rendered by them is entitled to be considered at the time of regular appointment."
8. The learned Single Judge, having noticed a few decisions of the High Court held that the plea of the appellants could not be accepted. It appears to us that the learned Single Judge, taking a sympathetic view, gave the directions while disposing of the writ petitions, which are already extracted above. The decision of this Court in Union of India and Ors. vs. Tejram Parashramji Bombhate & Ors. [(1991) 3 SCC 11] is almost on similar facts. In the said judgment, this Court observed that the teachers who were paid honorarium from out of fees from children and other donations, not by or on behalf of Central Government, were not entitled for regularization on par with Government teachers and the court or tribunal cannot compel the Government to change its policy and accord sanction to the schools which involves financial burden on the Government. Para 5 of the said judgment reads:
"5. Secondly, the respondents are not paid by the Central Government. They are not holding any appointment under the Central Government. There is no relationship of master and servant between the Central Government and the respondents. The respondents are employed in the Secondary School by local arrangement made by the officers of the ordnance factory. It is not proved that how the Central Government is accountable to such arrangement made by the local officers."
23. Also, he places reliance on the decision of the Honourable Supreme Court in AIR 2007 at page 1082 PUNJAB WATER SUPPLY AND SEWERAGE BOARD Vs. RANJODH SINGH & ORS, wherein at special page No.1085, in paragraph 14, it is held as follows:-
"Once it is held that the terms and conditions of service including the recruitment of employees were to be governed either by the statutory rules or rules framed under the proviso to Article 309 of the Constitution of India, it must necessarily be held that any policy decision adopted by the State in exercise of its jurisdiction under Article 162 of the Constitution of India would be illegal and without jurisdiction. In A. Umarani vs. Registrar, Cooperative Societies & Ors. [(2004) 7 SCC 112], a Three Judge Bench of this Court has opined :
"No regularisation is, thus, permissible in exercise of the statutory power conferred under Article 162 of the Constitution if the appointments have been made in contravention of the statutory rules."
It was further held :
"It is trite that appointments cannot be made on political considerations and in violation of the government directions for reduction of establishment expenditure or a prohibition on the filling up of vacant posts or creating new posts including regularisation of daily-waged employees. (See Municipal Corpn., Bilaspur v. Veer Singh Rajput)."
24. Further, in the said decision, at page 1087, in paragraph Nos.18 and 19, it is observed as follows:-
"18. In the instant case, the High Court did not issue a writ of mandamus on arriving at a finding that the respondents had a legal right in relation to their claim for regularisation, which it was obligated to do. It proceeded to issue the directions only on the basis of the purported policy decision adopted by the State. It failed to notice that a policy decision cannot be adopted by means of a circular letter and, as noticed herein before, even a policy decision adopted in terms of Article 162 of the Constitution of India in that behalf would be void. Any departmental letter or executive instruction cannot prevail over statutory rule and constitutional provisions. Any appointment, thus, made without following the procedure would be ultra vires.
19. This Court, recently in Indian Drugs & Pharmaceuticals Ltd. vs. Workman, Indian Drugs & Pharmaceuticals Ltd. [2006 (12) SCALE 1], opined that rules of recruitment cannot be relaxed and the Courts/Tribunals cannot direct regularisation of temporary appointees de hors the rules, nor can it direct continuation of service of a temporary employee (whether called a casual, ad hoc or daily rate employee) or payment of regular salaries to them. {See also Municipal Corporation, Jabalpur vs. Om Prakash Dubey [Civil Appeal No.5607/2006 @ S.L.P. (C) No. 5065 of 2006, disposed of on 5th December, 2006].}"
25. Also, in paragraph No.22, at page 1087, it is held as follows:-
"An endeavor was made also to submit that the respondents were employed on daily rated basis and their services were transferred to the Corporation. No such case was made out and in any event, as and when the respondents themselves agreed to be appointed on a contractual basis by the appellant-Board, at this juncture they cannot be heard to say that the purported transfer of their services by the State of Punjab to the appellant-Board was illegal. Even no such case has been made out in the special leave petition."
26. Besides the above decisions, the Learned Counsel for the Respondents cites the decision of the Honourable Supreme Court in UNION OF INDIA AND ORS V. VARTAK LABOUR UNION reported in 2011 AIR SCW 1786, wherein in paragraph No.16 it is observed as follows:-
"16. We are of the opinion that the respondent Union's claim for regularization of its members merely because they have been working for BRO for a considerable period of time cannot be granted in light of several decisions of this Court, wherein it has been consistently held that casual employment terminates when the same is discontinued, and merely because a temporary or casual worker has been engaged beyond the period of his employment, he would not be entitled to be absorbed in regular service or made permanent, if the original appointment was not in terms of the process envisaged by the relevant rules. (See: State of Karnataka & Ors. Vs. Umadevi (3) & Ors {(2006) 4 SCC 1: (AIR 2006 SC 1806): (2006 AIR SCW 1991); Official Liquidator Vs. Dayanand & Ors {(2008) 10 SCC 1: (AIR 2008 SC (Supp) 1177); Union of India and Anr v. Kartick Chandra Mondal and Anr:Satya Prakash and Ors vs. State of Bihar and ors {(2010) 4 SCC 179: (2010 AIR SCW 2112) and Rameshwar Dayal v. Indian Railway Construction Company Limited and Ors {(2010) 11 SCC 733: (AIR 2010 SC 3446): (2010 AIR SCW 5196)."
27. Reference to the contents of Staff Circular R.C.No.1975:- The Learned Counsel for the Petitioner refers to the Staff Circular R.C.No.1975 of the First Respondent/Bank dated 4/11/1989 whereby and whereunder to Clause 'B' under the caption of 'Eligiblity for Drivers/Reimbursement of Driver salary' reads thus:-
"(a). Officers of Scale V and above are allowed Bank's Driver/reimbursement of driver salary, as the case may be.
(b). Officers of Scale IV in the operational area/field (Regional offices and Branches) will be eligible for driver/reimbursement of driver salary facility, Scale IV Officers in the non-operational area (i.e., at Head Office departments or at Zonal offices) will not be eligible for this facility excepting those who are already enjoying it, at present.
It is clarified that officers promoted to Scale IV herein will be eligible for driver/reimbursement of driver's salary only during the period of their posting in the operational area/field."
28. The Resume of First Respondent/Bank's Communications:- The Head Office, Personnel Department of the First Respondent/Bank in its communication dated 8/1/1991 addressed to the Third Respondent/Zonal Manager has stated that they had enclosed here with a letter dated 11/12/1990 received from the petitioner whereby he made a request to be appointed as Peon and in this regard, the Third Respondent was requested to clear the same suitably at his hand.
29. The Regional Manager of the First Respondent/Bank through communication dated 12/4/1991 addressed to the Fourth Respondent/Bank inter alia stated that the Petitioner was presently working with the Regional Manager as Personal Driver and not as Temporary Peon in the Bank and further, they had no objection if as per Bank's Rules and Regulations considered for permanent employment in the Bank for the post of Peon-cum-Driver.
30. On 21/6/1991, the Assistant General Manager of the First Respondent Bank in his communication addressed to the Manager, (Personnel) Department of the First Respondent Bank, New Delhi among other things mentioned that he had no objection, if as per the Bank's Rules, the Petitioner was considered for permanent employment in the Bank for the post of Peon/Peon-cum-Driver.
31. The Chief Manager (Personnel) of the First Respondent Bank in his communication dated 19/5/1997 addressed to the Third Respondent/Zonal Manager of the First Respondent Bank, Chennai had sought for the details of the Driver presently engaged by him on Bank's car allotted to him on the enclosed proforma. Further, he was directed to make a separate mention if the person was engaged previously by other Executive of the Bank with the relevant dates. So that exact period for which the person was engaged for the Bank's vehicle be known. Also that, the third respondent was directed to obtain an application from the Driver on the proforma executive and arrange to send the same to them.
32. Representation of the Petitioner:- The Petitioner in his representation on 23/5/1997 addressed to the Chairman and Managing Director of the Punjab & Sind Bank had inter alia stated that he worked with the following Executives, viz.,
(i). M.S.Sarang, Acting Regional Manager, Madras from March 1983 to June 1985.
(ii). Daljit Singh, Regional Manager, Madras from July 1985 to 23/11/1989.
(iii). Manjit Singh, Assistant General Manager, Madras from 24/11/1989 to April 1994.
(iv). K.G.S.Nagpal, Zonal Manager, Madras from May 1994 to April 1996.
(v). Jassal Singh, Zonal Manager, Madras from May 1996 till date.
33. In effect, he has stated that he worked as Driver to the Bank Executives for about 14 years and made a request that he might be taken in regular service of the Bank. Also, he gave an undertaking in his representation that he would not claim wages or any other benefits of any kind whatsoever on the basis of the past service rendered with the Executives of the Bank.
34. In the letter dated 4/8/1998 of the Fourth Respondent in Reference No.Staff/Mgr/1591/98 addressed to the Assistant General Manager, Punjab & Sind Bank, Zonal Office, Chennai, it was mentioned that it was decided to revise the ceiling of reimbursement of salary to the Personal Drivers engaged by the Executives for Bank cars provided to them. Also that the revised rates which were applicable with effect from 1st August 1998 were stated as under:-
1.
Executives (SMGS-IV & above) posted at Mumbai Rs.3,000 p.m.
2. Executives (SMS - IV & above) posted at Delhi/Calcutta/Chandigarh Chennai/Bangalore/Hyderabad Rs.2,700/-p.m.
3. Executives (SMGS - IV & above) posted at Other cities Rs.2,500/-p.m.
35. Furthermore, it was stated in the communication that in case of Scale IV Officers, the above reimbursement is permissible as long as they remain posted in operational areas. The other terms and conditions of their sanction letter would remain the same.
36. A perusal of the letter dated 11/10/1999 of the Zonal Manager of the First Respondent Bank, Chennai addressed to the Deputy General Manager of the First Respondent Bank, New Delhi shows that the representation of the Petitioner was forwarded requesting for absorption in Bank's services as Peon/Driver and also a request was made that his case might be considered favourably as per Bank's Rules at the earliest.
37. In the Communication of the Third Respondent/Zonal Manager dated 28/11/2001 addressed to the Deputy Manager of the First Respondent Bank, New Delhi, it has categorically mentioned that the Petitioner was performing the duties of Personal Driver for Zonal Manager of this Zone since March 1983 and he continuous to be the Personal Driver till date and after mentioning the names of various Zonal Managers to whom he had served, it was ultimately stated that in view of his 18 long years of association with the Bank as Personal Driver to different Regional/Zonal Managers, his sincere work, his family circumstances and his representations, recommendation was made to the effect that a sympathetic view be adopted and the Petitioner's request for absorption in the Bank's service be acceded to favourably as per Bank's policy.
38. Again, the Third Respondent/Zonal Manager of the First Respondent Bank in his Communication dated 30/3/2000 addressed to the Deputy General Manager of the First Respondent Bank made a request that the Petitioner's case might be considered favourably as per Bank's Rules at the earliest.
39. On 21/6/2004, the Petitioner, in his representation addressed to the First Respondent/Bank Chairman and Managing Director of the Bank, New Delhi had among other things mentioned that he had served the organisation for the past 21 years with no memo ever served on him and that the leave taken by him was unavoidable and made an assurance that he shall not take any leave after his reinstatement without the permission of the competent authority.
40. Also that the Petitioner stated that he was aged 47 years and it would be very difficult for him to get job anywhere else at this age and also that he belongs to a middle class family with wife, two children and aged parents to support etc. As a matter of fact, he made a request on sympathetic grounds that he be given an opportunity to serve in the organisation for remaining years of service left.
41. The Deputy General Manager (Planning) of the First Respondent Bank in his Communication in Reference No.P & D/3492/2005 - 06 dated 26/4/2005 issued the following guidelines in order to economise and control the expenditure and they were as follows:-
"1. Petrol: During the last few years, the petrol cost has increased substantially with the result that burden on the bank on account of reimbursement of petrol expenses has also increased. In view of that it has been decided that a cut of 10% in petrol permissible limits be levied on all functionaries upto scale VII, provided with Bank's vehicle (car).
2. Drivers: At present, scale IV & above officers posted in branches are allowed to hire personal drivers at bank's expenses. It has been decided to withdraw the driver's facility to scale IV Officers except Scale IV Zonal Managers.
3. Mobile Phones: The mobile phones provided by the bank to its officers have been shifted to Rs.199/- p.m minimum charges plan from Rs.600/- p.m., minimum charges plan at head office. It has been decided that field functionaries who have been provided with Mobile phones may follow the above or explore the feasibility of availing the "Most Economic Plan" available in their area. Other service providers may also be approached if better rates can be negotiated.
4. Travelling while on Training: At present, officers upto Scale IV are not allowed to travel by air for attending training programmes. It has been decided to extend this restriction upto Scale V Officers also."
42. Petitioner's side submissions:- The Learned Counsel for the Petitioner submits that the Petitioner was engaged as Driver by the Regional Manager of the First Respondent Bank and that the Bank would pay salary to him by way of reimbursement. Further, even if a particular Regional Manager of the Bank goes out the Petitioner would be continued to be engaged as Driver for other Executives of the Bank like Regional Manager, Assistant General Manager, Zonal Manager and in the year 2004, the Petitioner was stopped as Driver.
43. The Learned Counsel for the Petitioner contends that the Petitioner was paid a consolidated sum of Rs.3,000/- p.m., as salary and from the year 1983 to 2005, he worked/engaged as Driver, driving the vehicle of the Executives of the Bank and that the Petitioner was not eligible for any leave and he took three days leave and at the age of 47, he was disengaged.
44. The Learned Counsel for the Petitioner submits that the Petitioner was always treated as Bank Driver driving Bank's car whenever Zonal Manager of the Bank was in City and further, he was asked to report before the Zonal Office for attending other work and also that he was paid conveyance of Rs.75/- to go to the Zonal Manager's residence.
45. The Learned Counsel for the Petitioner brings it to the notice of this Court that the Deputy Secretary to the Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division), New Delhi, on 23/6/1997, addressed a Circular to the Chief Executives of all Public Sector Banks in regard to the proposal for absorption of Personal Drivers engaged by the Executives of the Banks on regular establishment of the Banks. In the said Circular, it is mentioned that a few proposals were received from some of the Public Sector Banks seeking permission of the Government for absorption of the Personal Drivers engaged by the Executives of the Banks in their personal capacity on their regular establishment and that the matter was examined in detail and it was absorbed that these Personal Drivers were engaged by the Executives of the Public Sector Banks and they were paid by the Executives out of the allowances being granted to them by the Banks.
46. Further more, the Circular went on to add that the question of their absorption on regular establishments of the Banks, does not therefore, arise as there was no Employer - Employee relationship between the Banks and the Drivers engaged by the Executives. Also that, this was against the Policy of public employment. Any such recruitment in Bank could only be made through regular employment channels which provide for reservations to SC/STs.
47. Finally, the aforesaid Circular requested the Chief Executives of all Public Sector Banks not to send any such proposals to the Government for the absorption of Personal Drivers and to advise that no Personal Driver hereafter be absorbed on regular establishment and that cases where appointments were already been done may not be reopened and it was made clear that these orders shall come into effect immediately and supercede all orders issued in this regard so far. Moreover, the said Circular made the concerned General Manager be personally responsible to ensure the compliance of this order.
48. It comes to be known from the Letter dated 20/2/2004 addressed by the Third Respondent to the General Manager (Personnel) to the effect that as his Personal Driver who was driving Bank's car No.KA19N-5781, Mr.N.Veerappan (Writ Petitioner) had not reported on 9/2/2004 in spite of informing him the exigencies of service in connection with the visit of Executive Director/General Manager to Chennai during the week. Therefore, the Third Respondent engaged Mr.A.Venkatesan from 9/2/2004 to manage his official appointments. The Third Respondent in the Office Note dated 20/2/2004 had also stated that A.Venkatesan had already worked as Personal Driver with
(i). G.S.Rekhi, Chief Manager, IBD Chennai from 1996 - 1998 and
(ii). Gurucharan Singh, Chief Manager, IBD Chennai from 1998 - 2002 and also he was informed on 12/2/2004 that he received a call from the wife of N.Veerappan (Writ Petitioner) that he was away to Bangalore in connection with the marriage and shall join his duty from 19/2/2004. At no stage, the Writ Petitioner contacted the Third Respondent in person although being his Personal Driver.
49. The Third Respondent/Zonal Manager of the First Respondent Bank addressed a letter dated 20/2/2004 to the Second Respondent/General Manager (Personnel of the First Respondent/Bank), wherein he had informed that N.Veerappan (Writ Petitioner) was working with him as his Personal Driver and he had not reported to duty since 9/2/2004 and he had engaged A.Venkatesan as his Personal Driver for Bank's Car No.KA19N-5781 etc. To put it shortly, the Third Respondent in his letter dated 20/2/2004 had clearly mentioned that A.Venkatesan was engaged as Personal Driver to Zonal Manager for Bank's car No.KA19N-5781 as per existing Policy of the Bank and was being paid Rs.3,000/- p.m., by him on reimbursement basis.
50. Keeping in view the Executive Director/General Manager visit to Chennai on 13/2/2004 evening, the Third Respondent kept A.Venkatesan engaged in personal capacity to drive Bank's car, keeping in view of this official exigencies. Apart from the above, the Third Respondent's Office Note dated 20/2/2004 addressed to the General Manager (Personnel) of the Bank proceeds to make a pertinent mention that there were no communications from N.Veerappan (Writ Petitioner) till date to him about his whereabouts and he had not informed him. Further, as A.Venkatesan was also having apprehension of his continuing as his Personal Driver and he might lose his job where he was already working. Therefore, under the circumstances, he engaged Venkatesan as his Personal Driver to drive Bank's car No.KA19N-5781. On his request, whose credence were beyond doubt as he had already worked with the following Chief Manager of the Banks as Personal Driver during the period against their names.
(i). G.S.Rekhi, Chief Manager, IBD Chennai from 1996 - 1998 and
(ii). Gurucharan Singh, Chief Manager, IBD Chennai from 1998 - 2002.
51. In fact, the Third Respondent had also stated that on verification from different staff members also, the said Venkatesan was found to be dependable, honest and committed to job as his Personal Driver to drive Bank's car allotted to him as stated above with effect from 9/2/2004, since he was working with him from that date as Personal Driver.
52. The Fourth Respondent/Chief Manager of the Bank in his Letter dated 31/7/2004 addressed to the Third Respondent and inter alia added that they had engaged the services of N.Veerappan (Writ Petitioner) who was the Driver for previous Zonal Manager on a monthly remuneration of Rs.3,000/-
53. The Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) on 27/3/2006 had addressed a Circular of the Chief Executive Officer of Indian Banks' Association, Mumbai (with a copy being marked to the General Manager (Per), Indian Bank, Head Office, Chennai, with reference to their Letter dated 9/3/2006 on the subject absorption of Personal Drivers in Public Sector Banks by stating that in past, there was a practice existing in Public Sector Banks (PSBs) of employing Personal Drivers by the top Executives of the Banks and these Personal Drivers were paid by the Executives themselves out of the allowances received by them from their respective Banks. Further, the persons employed as Drivers are chosen by the Executives themselves without conforming to any recruitment rules or obtaining any nominations through employment exchange etc. Thus, these Personal Drivers were in fact, the personal employees of the Executives. Accordingly, the PSBs were advised vide this Division's Letter No.9/5/92-IR dated 23rd June, 1997 that since there was no Employer - Employee relationship between the Bank and the Drivers engaged by the Executives, these Drivers cannot be absorbed in the Bank's service. This is also against the Policy of Public Employment etc. Further, it was mentioned that PSBs were provided with managerial autonomy vide this Division's letter dated 22/2/2005 and as a part of overall human resources guidelines, the Board of Directors of the Banks were since been provided with the additional powers to frame their own HR policies and procedures for recruitment including the eligibility criteria, mode of selection, level of entry, etc.
54. Also that it was mentioned that even after the grant of managerial autonomy as stated above, they were receiving proposals relating to absorption of these Personal Drivers for which these Banks are competent to take decision with the approval of their Boards in terms of para 8 (iii) of their above said Letter dated 22/2/2005 keeping in view the Government Policies/Instructions from time to time.
55. Respondents' Contentions:- Repudiating the contentions of the Learned Counsel for the Petitioner, the Learned Counsel for the Respondents submit that there is no appointment order issued to the petitioner by the Bank and further, there is no proof that he was engaged for 22 years.
56. Advancing his arguments, the Learned Counsel for the Respondents strenuously contends that there is no Employer - Employee relationship between the Petitioner and the Bank and in fact, in the Circular issued by the Ministry of Finance dated 27/3/1996, nowhere it is stated that the length of service is a criteria for absorption of a Personal Driver in Public Sector Bank.
57. Also that only when there is an appointment, the issue of renewal will come into picture and there is no proof in the present case that the Writ Petitioner was engaged regularly and there is no provision for making an illegal appointment on back-door entry.
58. Discussions:- It is to be borne in mind that ordinarily, the onus of proof for existence of relationship of Employer - Employee lies upon a person who sets a plea on its existence. There is no dispute of the fact that the purpose of Industrial Disputes Act, 1947 is to project a workmen whose services has been engaged continuously for a considerable period of time. The right of re-employment as provided under the Industrial Disputes Act, 1947 is available to such of those workers who are represented from service and not to those whose services were terminated on closure of establishment.
59. Further, whether an Employee is a workman or not, the same ought to be decided at the threshold. One cannot ignore an important fact that by circumventing the remedy under Industrial Disputes Act, a person cannot invoke the extraordinary jurisdiction of this Court for regularisation of services in a organisation/establishment as the case may be.
60. Besides the above, the disputed question of fact cannot also be gone into by the High Court in exercise of Writ jurisdiction.
61. The Learned Counsel for the Petitioner laid emphasis on the Circular dated 27/3/2006 issued by the Ministry of Finance, Government of India, Department of Economic Affairs (Banking Division) wherein it is mentioned that "we have been receiving proposals relating to absorption of these Personal Drivers for which these Banks are competent to take decision with the approval of their Boards in terms of para 8 (iii) of our above said letter dated 22/2/2005, keeping in view the Government Policies/Instructions from time to time and project the argument that a Writ of Mandamus may be issued by this Court in directing the respondents to regularise the services of the Petitioner. It cannot be gain said that the Government in the decision of MUDRA COMMUNICATIONS LIMITED V. GANESHKUMAR {2010 LLR - 763 (Delhi High Court)}, it is held that the Personal Driver of General Manager is wrongly held to be Company's Employee.
62. Recalling and Recollecting some decisions:- At this juncture, this Court pertinently points out that mere completion of 240 days of continuous service in a year, cannot form the basis for regularisation of service of a workman as per the decision MANAGEMENT OF DIVISIONAL ENGINEER, TELECOMMUNICATIONS, MEHABOOB NAGAR DISTRICT V. VENKATAIAH {2007 LLR (SN)}.
63. Continuing further, raising of dispute by a workman upon an Employer is a condition proceeding to refer it for Adjudication under Section 2 (A) of the Industrial Disputes Act, 1947, a remedy is available only when a workman is dismissed, discharged or terminated as per decision M.R.ACHAR V. SYNDICATE BANK {2006 LLR - 1087 (Karn.H.C)}.
64. If the nature of work of an Employee is not like a workman, he would not be a workman under the Industrial Disputes Act, 1947, as per decision JOHNSON & JOHNSON LIMITED Vs. III INDUSTRIAL TRIBUNAL, WEST BENGAL {2005 (3) CHN at page 608}.
65. In the decision SINGER SEWING MACHINE COMPANY Vs. PRESIDING OFFICER, LABOUR COURT IV, KANPUR {1998 LLR at page 813 (All.), it is held that "A Driver engaged by the Regional Manager to drive a car provided to him by the Company will not be a workman."
66. In the decision SREE BHAGWAN V. NATIONAL HOUSING BANK {2001 LLR at page 886}, it is laid down that "A Personal Driver of a Bank Executive receiving wages from the Bank cannot be treated as an Employee of the Bank."
67. It is to be pointed out by this Court that ordinarily 'appointment is the beginning career of an employment in respect of a person. Undoubtedly, an appointment confers status and ensures all rights that are attached to a particular service including confirmation, seniority, promotion etc. It is to be remembered that an appointment is made to a vacancy and in a post. As such it is made by a positive and deliberate act of employment creating a relationship between an Employer and Employee.
68. In Service Jurisprudence, the term 'Appointment and Recruitment are two individual concepts, as opined by this Court. The word 'Recruitment' is precursor to an appointment. Whereas 'Recruitment' means enlistment of eligible persons selected through an approved mode. In regard to an appointment, the same involves the actual act of posting an individual to a particular office. No wonder, an appointment is effected by an Employer through a contract of Employment. Like in every contract, even in the case of contract of an employment, whether it is public or private, an offer of appointment to a person sought to be employed is made and when such an offer is accepted, then, such an offer forms the basis of appointment.
69. In regard to the term 'Lien' it can safely be said that it is the right to hold the post to which one has been regularly appointed. After all, 'lien' is a civil right, which cannot be taken away except by a process of law.
70. At this stage, this Court points out that in the decision of Honourable Supreme Court in PRAFULLA KUMAR SWAIN V. PRAKASH CHANDRA MISRA AND OTHERS {1993 SUPP (3) SUPREME COURT CASES 181}, it is held that "the appointment means an actual act of posting a person to a particular office."
71. Conclusion:- In the upshot of qualitative and quantitative discussions made supra and also this Court on a consideration of respective contentions advanced on either side is of the considered view that as per the provision that existed for reimbursement of the exigencies incurred by the Bank Officials for keeping Drivers to drive the cars belonging to the Bank and allotted to these officials though would vary from time to time, the Driver's salary was paid by the concerned Official/Executive of the Bank personally and later, he would submit bill to the Bank and the Bank would reimburse the said bill amount.
72. In the instant case on hand, the Petitioner was the Personal Driver of the Third Respondent/Zonal Manager during January 2004. Then the Third Respondent/Zonal Manager dispensed with his services. Subsequently, during July 2004, Scale IV Officers were provided with Bank's cars as per the guidelines of the Bank's H.O and the Fourth Respondent/Chief Manager of the Bank, engage the services of the petitioner from 24th July 2004. Admittedly, by virtue of the Circular of H.O of the First Respondent Bank dated 26/4/2005, provision for reimbursement of the Driver salary paid by the Fourth Respondent to the Petitioner (as his Driver was stopped). Notwithstanding the fact that the absorption of any Driver in a permanent roll of the Bank staff would be as per Central Government Guidelines on 27/3/2006. The Government of India, Ministry of Finance, Department of Economic Affairs (Banking Division) in its communication through the under Secretary to Government of India addressed to Chief Executive Officer of Indian Banks' Association, Mumbai had categorically among other things stated that the Public Sector Banks were advised vide this Division's Letter No.9/5/92-IR dated 23/6/1997 that since there was no Employer - Employee relationship between the Bank and the Drivers engaged by the Executives, these Drivers could not be absorbed in the Bank's service and this was also against the policy of Public Employment and further, it was specifically mentioned that any such recruitment in Banks can only be made through regular recruitment channel, which also provide for reservations for SCs/STs.
73. In any event, this Court opines that even though the Circular issued by the Ministry of Finance dated 27/3/2006 mentions that the Public Sector Banks are competent to take decision relating to the absorption of these Personal Drivers with the approval of their powers in terms of para 8 (iii) of their letter dated 22/2/2005 keeping in view the guidelines/instructions from time to time, yet this Court holds that the respondents do not have power to absorb the Petitioner much less any Driver in his position as the case may be in the Rolls of the Bank's staff by regularising his services in any manner, in view of the fact that the Petitioner was engaged by the Bank Executive as his Personal Driver by no stretch of imagination it could be said that the Petitioner was the Employee of the Bank. More so, in the absence of any relationship as Master and Servant between the Bank and the Writ Petitioner. Also, when the writ petition was engaged by the Bank Executive as Personal Driver, then as against the Respondents/Bank, the Writ Petitioner strictly speaking has no legally enforceable right in seeking regularisation of his services as prayed for by him in the Writ Petition.
74. Looking at from any angle, the Writ Petition fails. In the result, the Writ Petition is dismissed, leaving the parties to bear their own costs. It is made clear that the dismissal of the present Writ Petition filed by the Petitioner will not preclude him in any manner to seek appropriate remedy before the competent forum for redressal of his grievance in the manner known to law and in accordance with law, if so advised/desired. Consequently, the connected Miscellaneous Petition is also dismissed.
19/9/2013 Index: Yes/No website: Yes/No mvs.
M.VENUGOPAL,J mvs.
order in W.P.No.16147 of 2005 19/9/2013