Jharkhand High Court
Employers In Relation To The Management ... vs Workmen Represented Through The on 15 July, 2022
Author: Kailash Prasad Deo
Bench: Kailash Prasad Deo
IN THE HIGH COURT OF JHARKHAND AT RANCHI
(Civil Writ Jurisdiction)
W.P. (L) No. 2812 of 2017
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Employers in Relation to the Management of Central Bank of India, Ranchi ..... ..... Petitioner Versus Workmen Represented through the Deputy General Manager, Bihar Provincial Central Bank of India Employees Association, Central Bank of India, Sakchi, Singhbhum East .... ..... Respondent CORAM: HON'BLE MR. JUSTICE KAILASH PRASAD DEO ............
For the Petitioner : Mr. P.A.S. Pati, Advocate. For the Respondent : Mr. Sunil Kumar Sinha, Advocate.
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10/15.07.2022.
Heard, learned counsel, Mr. P.A.S. Pati, appearing for the petitioner - Employers in Relation to the Management of Central Bank of India, Ranchi being represented through its Regional Manager, Shri Anil Kumar Meelu, son of Sri Ram Das Meelu, both having their office at Krishna Arcade, Booty More, P.O. & P.S. - Bariatu, District - Ranchi and learned counsel, Mr. Sunil Kumar Sinha appearing for the Workmen represented through the Deputy General Manager, Bihar Provincial Central Bank of India Employees Association, Central Bank of India, Sakchi, P.O. & P.S. - Sakchi, District - Singhbhum East.
Learned counsel for the petitioner has submitted, that the impugned award is of dated 24.08.2016 passed by the Central Government Industrial Tribunal (1), Dhanbad in Reference No. 23 of 2014, whereby reference made under Section 10(1)(d)(2-A) of the Industrial Disputes Act, 1947 has been allowed in favour of the workmen namely, Shri Sudama Sharma, Shri Ranjit Sarkar, Shri Babulal Pramanik and Shri Shakti Kumar.
Learned counsel for the petitioner has further submitted, that vide Order No. L-12011/296/2003-IR-(B)-II, dated 23.03.2004, the Central Government in the Ministry of Labour, in exercise of the powers conferred by clause (d) of sub-section (1) and sub-section (2A) of Section 10 of the Industrial Disputes Act, 1947, referred the following disputes for adjudication of the Tribunal:
-2-Schedule "Whether non regularizing the services of S/Shri Sudama Sharma, Ranjit Sarkar, Babulal Pramanik and Shakti Kumar as regular employees of Bank of Central Bank of India is justified? If not, what relief the concerned workmen are entitled to"
Learned counsel for the petitioner has further submitted, that these four workmen are of different categories, Sudama Sharma and Ranjit Sarkar being the driver of the vehicles of A.G.M. and Regional Manager of Central Bank of India respectively, whereas Babulal Parmanik and Shakti Kumar were employees of Central Bank of India Employees' Canteen, as such, employee engaged by Employees' Union cannot claim for regularization before the Bank. Therefore, the case of Babulal Parmanik and Shakti Kumar is distinguishable from the case of Sudama Sharma and Ranjit Sarkar.
Learned counsel for the petitioner has further submitted, that Ranjit Sarkar has been regularized subsequently, on the ground that Ranjit Sarkar has completed 15 years of service, as per the Bank Circular, which has also been recorded in the impugned award, but Sudama Sharma has not completed 15 years of service and 5 years driving experience, though as per the case of Sudama Sharma, he was serving the Bank prior to Ranjit Sarkar, as such, this Court may consider the same and set aside the award passed by the learned Tribunal.
To buttress his argument, learned counsel for the petitioner has placed reliance upon the judgment passed by the Apex Court in the case of Employers in relation to the Management of Reserve Bank of India Vs. Workmen reported in (1996) 3 SCC 267, Para-28 & 29 of which may profitably be quoted hereunder:-
28. We, therefore, hold that the assumption made by the Tribunal that the instant case clearly falls within the ratio laid down by this Court in M.M.R. Khan's case, is totally unjustified and incorrect. On the facts of this case, in the absence of any statutory or other legal obligation and in the absence of any right in the Bank to supervise and control the work or the details thereof in any manner regarding the canteen workers -3- employed in the three types of canteens, it cannot be said that the relationship of master and servant existed between the Bank and the various persons employed in three types of canteens. 166 persons mentioned in the list attached to the reference are not workmen of the Reserve Bank of India and that they are not comparable employees employed in the officers lounge. Therefore, the demand for regularization is unsustainable and they are not entitled to any relief. We hold that the award passed by the Tribunal is factually and legally unsustainable.
29. Before concluding the case, we should advert to the decision of this Court reported in Parimal Chandra Raha v. Life Insurance Corporation of India brought to our notice. Both sides extensively referred to this judgment to reinforce their plea. After adverting to the earlier decisions, this Court has summarised the law of the judgment thus : (JT pp. 304-5, para 27 : SCC p. 627, para-25) "What emerges from the statute law and the judicial decisions is as follows:
(i) Where, as under the provisions of the Factories Act, it is statutorily obligatory on the employer to provide and maintain canteen for the use of his employees, the canteen becomes a part of the establishment and, therefore, the workers employed in such canteen are the employees of the management.
(ii) Where, although it is not statutorily obligatory to provide a canteen, it is otherwise an obligation on the employer to provide a canteen, the canteen becomes a part of the establishment and the workers working in the canteen, the employees of the management. The obligation to provide a canteen has to be distinguished from the obligation to provide facilities to run canteen. The canteen run pursuance to the latter obligation, does not become a part of the establishment.
(iii) The obligation to provide canteen may be explicit or implicit. Where the obligation is not explicitly accepted by or cast upon the employer either by an agreement or an award etc., it may be inferred from the circumstances, and the provision of the canteen may be held to have become a part of the service conditions of the employees. Whether the provision for canteen services has become a part of the service conditions or not, is a question of fact to be determined on the facts and circumstances in each case.-4-
Where to provide canteen services has become a part of the service conditions of the employees, the canteen becomes a part of the establishment and the workers in such canteen become the employees of the management.
(iv) Whether a particular facility or service has become implicitly a part of the service conditions of the employees or not, will depend, among others, on the nature of the service/facility, the contribution the service in question makes to the efficiency of the employees and the establishment, whether the service is available as a matter of right to all the employees in their capacity as employees and nothing more, the number of employees employed in the establishment and the number of employees who avail of the service, the length of time for which the service has been continuously available, the hours during which it is available the nature and character of management, the interest taken by the employer in providing, maintaining, supervising and controlling the service, the contribution made by the management in the form of infrastructure and funds for making the service available etc."
Learned counsel for the petitioner has further placed reliance upon judgment passed by the Apex Court in the case of State Bank of India and Others Vs. State Bank of India Canteen Employees' Union (Bengal Circle) & Others reported in (2000) 5 SCC 531, Para-33, 34 & 39 of which may profitably be quoted hereunder:-
33. As stated above, in the present case there is no statutory or otherwise obligation of the employer to provide the canteen.
Therefore, the aforesaid decision would have no bearing. However, the learned counsel for the employees submitted that obligation to maintain canteen may be explicit or implicit as held in the said decision and that can be inferred from the facts of the present case as the Bank has admitted by four settlements stated above that it would provide canteen facilities to the employees where staff strength in a particular branch is 100 and above. He, therefore, submitted that thereafter there cannot be any discrimination for remaining branches. Hence it should be impliedly held that there is an obligation to run the canteens. In our view, this type of inference is not possible because the SBI Staff Federation in various settlements stated above has not considered it to be an obligation of the Bank to run such canteens. At the most, it can be inferred that Bank has an -5- obligation to promote running of canteens at its branches as a part of its staff welfare activities.
34. Further, we entirely agree with the decision rendered in the R.B.Is case (supra) by the three-Judge Bench and the facts in the present case are similar to the facts of that case. Presuming that privilege of providing canteen facilities to the employees exist, yet it would be difficult to hold that the Bank should provide the said facility by running canteen by itself. To promote canteen facilities by providing subsidy or other facilities is altogether different from running the canteen. Running of a canteen in a small branch having staff strength less than a particular limit may not be economical, but may be a waste. It has been pointed out by the learned counsel for the Bank that in some areas, staff strength may be less than 10. Further, the appointment of the employees by the Bank has been regulated by the State Bank of India General Regulations, which are statutory regulations framed by the Reserve Bank of India with previous sanction of the Central Government in exercise of powers conferred by sub-section (3) of Section 50 of the State Bank of India Act, 1955. In the case of canteen employees run by the LIC, the Bank does not have any control in their appointment and the aforesaid recruitment rules are not required to be observed.
39. We, therefore, hold that employees of the canteens which are run at various branches by the Local Implementation Committees as per the welfare scheme framed by the SBI would not become employees of the Bank as the Bank is not having any statutory or contractual obligation or obligation arising under the Award to run such canteens. Hence, it is not necessary to decide the second question that fresh petition for the same cause was not maintainable in view of the order dated 14.10.1985 passed by this Court in Civil Appeal No.840 of 1977.
Learned counsel for the petitioner has thus submitted, that the Canteen Employees cannot be regularized, and as such the award with regard to Canteen Employees may be set aside and this Court may interfere with the regularization of Sudama Sharma as he has not completed 15 years of his service, as claimed by Sudama Sharma and so far the case of Ranjit Sarkar is concerned, since he has -6- already been regularized and withdrew his case, as such, the case of Ranjit Sarkar has become infructuous.
Learned counsel for the respondent has submitted, that the Canteen Workers have served the Bank, through the Canteen Committee formed by the Employees of the Bank, as such, the impugned order has rightly been passed by the learned Tribunal. If, the Bank is not inclined to engage them in Canteen Services, they may be employed on certain vacancies available before the Bank like Class-IV employee to appreciate their labour and duty.
Learned counsel for the respondent has further submitted, that it is strange that a person, who is working in the Bank for long period, has been considered to be junior, only on the basis of their licence, though both Sudama Sharma and Ranjit Sarkar were driving the vehicles. Nowhere, contrary evidence has been brought on record by the Management, that Sudama Sharma was not driving the vehicle prior to Ranjit Sarkar nor Management has considered that licence may expire, leading to the issuance of fresh licence, which may show, such experience of five years, but admittedly Sudama Sharma was also driving the vehicle of the Bank on the basis of initial date of issuance of licence, which ought to have been criteria for examining the experience, but same was not considered while regularizing the service of Ranjit Sarkar, rather Sudama Sharma is driving the vehicle of the Bank prior to Ranjit Sarkar, therefore, such discrimination by the Bank itself shows, that the award has rightly been passed by the learned Tribunal, as such this Court may not interfere with the same with respect to regularization of Sudama Sharma.
Considering the rival submissions of the parties and looking into facts and circumstances of the case, particularly the judgment passed by the Apex Court, the Canteen Workers are not the employees of the Bank and thus the award in favour of the Babulal Parmanik and Shakti Kumar is hereby set aside.
So far Ranjit Sarkar is concerned, it is an admitted position, that Ranjit Sarkar has been regularized by the Bank, but no reason -7- has been given for discriminating Sudama Sharma, who was admittedly, as per the evidence of M.W.-1, is senior to Ranjit Sarkar. A wrong plea has been taken by the Bank, that Sudama Sharma and Ranjit Sarkar were private drivers, which is not correct, as the vehicles were provided by the Bank and these persons were driving the vehicles of the Bank. As such, in absence of any contrary evidence brought on record by the Bank, this Court is of the finding that both were driving the vehicles of the Bank and their case is not like the case of Canteen Workers. Accordingly, their case is distinguishable.
Since Ranjit Sarkar has already been regularized by the Bank, this Court do not want to interfere with the findings recorded by the learned Tribunal, so far Sudama Sharma is concerned.
Accordingly, the writ petition with regard to award of Sudama Sharma is accorded without any interference.
It is expected that if, the Bank has regularized the services of Ranjit Sarkar, who is admittedly junior to Sudama Sharma, then Sudama Sharma is also entitled for the same.
Accordingly, the writ petition is disposed of. I.A. No. 5456/2017 stands closed.
(Kailash Prasad Deo, J.) Sunil/-