Madras High Court
Indian Bank Jewel Appraisers ... vs Government Of India on 25 August, 2015
Author: C.S.Karnan
Bench: C.S.Karnan
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 25.08.2015 CORAM THE HONOURABLE MR.JUSTICE C.S.KARNAN W.P.No.33464 of 2014 and M.P.Nos.1 and 2 of 2015 & 2 of 2014 Order Reserved on 28.07.2015 Judgment Pronounced on 25 .08.2015 Indian Bank Jewel Appraisers Association, Represented by its General Secretary, Mr.S.Bakthavathsalam No.12/1, Lakshmanan Street, M.G.R.Nagar, Chennai 600 078. ... Petitioner Vs. 1.Government of India, Rep. by its Secretary, Ministry of Labour and Employment, Shram Sakthi Bhavan, New Delhi 110001. 2.Indian Bank Rep. by its General Manager (HR), Corporate Office, 254 - 260, Avvai Shanmugam Salai, Royapettah, Chennai 600014. 3.The Assistant Commissioner of Labour (Central), Sastri Bhavan, No.26, Haddows Road, Nungambakkam, Chennai 600006. 4.The Desk Officer, Government of India/Bharat Sarkar, Ministry of Labour/Shram Mantralaya, New Delhi. ... Respondents Prayer: Writ petition is filed under Article 226 of the Constitution of India for issuance of a Writ of Certiorarified Mandamus, calling for the records relating to the order passed by the 4th Respondent made in No.L.12011/68/2014-IR (BII) dated 31.10.2014 to quash the same and consequently direct the 2nd Respondent to regularize the service of the Members of Jewel Appraisers of the Petitioners Association and extend of all benefits. For Petitioner : Mr.M.V.Muralidharan For Respondents : Mr.Jayesh Dolia, Senior Counsel (for R2) for M/s.Aiyar and Dolia Mr.Haja Mohideen Gisthi (for R1, R3 & R4) for Mr.Su.Srinivasan ASGI ***** O R D E R
The short facts of the case are as follows:
The petitioner submits that the Petitioner's Association is a registered Association, registered on 02.01.2013 and its Registration No.3471/CNI. The member of the association are the jewel appraisers who are employed in the second Respondent's bank in various places of Tamil Nadu and Union of India. Since 1983 onwards the Jewel Appraisers of the Association are working under the control of second respondent's bank in various branches of the State and all over India. The Jewel Appraisers are working in the second respondent bank and from the beginning of the Banking hours and to the end of the banking hours. Further the Appraisers should be present at the bank premises on all working days during the Banking hours. Therefore it is clearly proved that the Jewel Appraisers of the Association working hours are same as to the regular employees of the second respondent bank.
2.He further submits that the nature of the work of the Jewel Appraisers for weighing, assessing the value and for verifying the quality and quantity of gold jewel and ornaments tendered at the branches for granting jewel loan to the borrowers. The appraisers are given a certificate on the basis of which the management decides, whether to grant loan or not to the customers. Apart from the above the appraisers will be required to do other clerical works incidental to or connected with sanction of jewel loan, disbursement and follow up of the loan. Further, the appraisers fill up jewel loan application and obtain signature from customers and the second respondent bank collecting the processing fee of Rs.560/- out of Rs.1,00,000/- from the Borrower. Therefore, according to them, their work is permanent through out the year and it is indispensable in the loan transaction of the banks. Even though the appraisers are permanent, they are not given other benefits given to permanent workers of the Bank.
3.He further submits that the jewel appraisers are employees by the second respondent bank on piece rate basis and are paid at the rate of Rs.300/- per every sanctioned way of loan. That the ceiling of the jewel was fixed by the second respondent bank. That the Jewel Appraisers of the second respondent bank was paid commission of Rs.3/- per every 1000/- rupees which is determined by the second respondent bank and such payment should be considered as wages under Section 2(rr) of the Industrial Disputes Act. He further submits that the appraiser should be present at the Bank's premises on all working days during banking hours and that the appraisers place of work is also in the premises of the second respondent bank and subsequently the second respondent bank have been strictly instructed that jewels should be appraised only in the Bank premises and in the presence of the borrowers and that on no account they should be sent out side the Bank premises for appraisal and further the appraiser cannot do private business within the business hours and bank premises. The instruments like weighing machines weights, scales and acids are supplied by the second respondent bank to the appraisers. Therefore, the second respondent bank has treated the Appraiser as its own employee and therefore is anxious to maintain cordial relationship between Appraisers and Management.
4.He further submits that the appraisers concerned absented himself from attending the office during office hours, his remuneration is ordered to be deducted proportionality for his absence. If an appraisers wants leave for a particular day, he should obtain necessary permission from the concerned Manager of the second respondent Bank. Therefore the second respondent bank is having effective control and discipline over its employees of the appraisers. He further submits that the Appraisers are continuously working in the second respondent bank for more than 30 years, without any break of service. But inspite of many requests made by the appraisers have not been regularized as per the previous order in I.D.No.25 of 1977 dated 03.12.1979 and which was conformed by the Hon'ble Apex Court.
5.He further submits that the second respondent bank is one of the Nationalized Bank in India. One of the Chief business in lending money by accepting jewels as security. The appraisers are engaged and employed by the second respondent bank to weigh, assess the value and verify the quality and quantities of gold ornaments tendered at the various branches for granting jewel loan to the borrowers. Specially after the second respondent bank was nationalized in 1971, the jewel loan facilities were extended to agricultural population under the directions of the Reserve Bank of India. It is further submitted that it is an undisputed fact that the jewel loan is one of the major business of the respondent bank and the appraisers are indispensable. Most of the appraisers are like the members of the petitioner's association are drawn from the gold smith community which has been thrown out by employment and livelihood as a result of gold central enactment. The Industrial Law has also progressed far beyond recognition in recent times and hence a Nationalised Bank's anxiety to prove that these appraisers who are fighting for their wages and permanent status.
6.He further submits that already the similarly placed employees of second respondent bank raised an Industrial Dispute for regularisation of their services in I.D.No.25 of 1977 before the Industrial Tribunal, Chennai. The award passed by the Industrial Tribunal on 03.12.1979, directed the management of the bank to regularize their service and give all the monetary benefits. Against that award the second respondent bank filed writ petition in W.P.No.1947 of 1980 and the same was dismissed on 14.02.1986. The Single Judge order had again taken an appeal in W.A.Nos.330 and 356 of 1986 before the Division Bench of this Court, the same was dismissed on 03.03.1990 and the Special Leave Petition in S.L.P.No.10054 of 1990 filed by the second respondent bank was also dismissed by the Hon'ble Supreme Court on 10.10.1990 and therefore in respect of the Jewel Appraisers of second respondent bank, the terms and conditions of service, they being employed by the second respondent bank remained Workmen within the meaning of Section 2(S) of the Industrial Disputes Act 1947.
7.He further submits that the Jewel Appraisers of the Petitioner's Association having being continuously working as Appraisers in the second respondent bank, on September 2013 they are raising the disputes against the second respondent Bank before the third respondent and for appointment of Jewel Appraisers as full time regular employees of the Management Bank; on 01.03.2013 and 28.03.2013 the Joint discussions were held by the Conciliation Officer. Despite all efforts made by the third respondent no amicable settlement could be brought out owing to the rigid stand of the parties and hence the instant Industrial Dispute thus ended in failure. That the above failure report had been sent to the fourth respondent. Thereafter the failure report had been received by the fourth respondent on 29.10.2014. The fourth respondent rejected the claim made by the jewel appraisers of the petitioner's association and further to that the fourth respondent is giving finding as follows:
The appraisers are not workmen as defined under Section 2(K) of Industrial Disputes Act and the Hon'ble Supreme Court of India in the case of Indian Overseas Bank reported in (2006) 3 SCC Page No.729, held that the position of extending also such benefits demanded by the organization of human rights should fail and further it is submitted that the demand of Appraisers Federation to regularise the service of the consent Jewel Appraisers is not justified and they are not entitled for any relief. Hence in view of the above judicial scrutiny it is not necessary and therefore the dispute is not found fit for adjudication.
Aggrieved by the same, the jewel appraisers of the petitioners association is to approach this Court to quash the above order passed by the fourth respondent and further directed the second respondent to regularize the services of jewel appraisers of the petitioners association.
8.He further submits that the Hon'ble Supreme Court in respect of the Indian Bank made it clear that the terms and conditions relating to Jewel Appraisers of second respondent Bank, which were ultimately confirmed by the Hon'ble Apex Court to the effect that the Jewel Appraisers of second respondent bank based on their conditions of services are to be treated as Workmen as per Section 2(S) of the Industrial Disputes Act are totally different from the Jewel Appraisers of Indian Overseas Bank on the basis of their service and nature of work done by them, therefore the Hon'ble Apex Court has given clear finding there is a difference between the Indian Overseas Bank and Indian Bank jewel Appraisers on the basis of their work, salary or commission are subject to the disciplinary control of the second respondent Bank. Hence the Indian Overseas Bank Jewel Appraisers are not workmen within the meaning of Section 2(S) of Industrial Disputes Act. That the limited findings was only high lighted by the fourth respondent and rejected the jewel appraisers claim for regularisation of their services. The Indian Overseas Bank's finding given by the Hon'ble Apex Court which is not applicable for the petitioners association.
9.He further submits that the Jewel Appraisers of Indian Bank's Association in respect of their service conditions are as follows:
i. Working hours fixed by the second respondent Bank.
ii. Commission is paid by the second respondent Bank of Rs.3/- for every Rs.1000/- sanctioned by way of loan. The maximum of Rs.300 as fixed by the second respondent for commission.
iii. The disciplinary control by the Bank.
iv. Transferred by the Appraisers from one branch to another bank.
v. Control or Supervision of the Bank.
vi. Appraisers are employed by the local Manager of the Bank.
vii. While an employment cannot carry for any other work.
Therefore the said Appraisers are as workmen as per Section 2(S) of Industrial Disputes Act Therefore the said Appraisers are as workmen as per Section 2(S) of Industrial Disputes Act and they are entitled to regularization of their services. Since 1983 for more than 30 years the appraisers are working continuously under the control of the second respondent Bank. Therefore the above said aspects of the appraisers service and conditions of the appraisers clearly shows that there is relationship of employer and employee between the bank and the appraisers and also the petitioners claiming permanent status under the Tamil Nadu Industrial Establishment (conferment of permanent status to workmen) Act 1981. In the case of Jewel Appraisers of Indian Bank that they were being paid maximum commission of Rs.300/- sanctioned by way of loan. In so far as payment of commission clause (iv) of Sub Section (rr) of Section 2 of Industrial Disputes Act describes as any commission payable or promotion of sales or business or both could be considered as wages. Applying the definition as it is admitted to the jewel appraisers of the bank are paid commission of Rs.3/- for every one thousand sanction way of loan. Such payment should be considered as wages under the definition of wages.
10.He further submits that the Hon'ble Supreme Court thus came to the conclusion that the dispute in the Indian Bank case was conceptually different by categorizing the distinction as follows:
A few distinguishing facts are to be noted in Indian Bank Case (1986 (2) MLJ 59) Indian Bank Case: I.O.B. Case:
1.There was evidence to show The witness of Jewel that the jewel appraisers work appraisers that there was regularly for their hours. No fixed period of work and they could come and go at any point of time.
2.The Bank had disciplinary The Bank did not exercise control on the Jewel Appraiser any disciplinary control.
3.conditions were to be Not required to sign fulfilled before any leave attendance register and was granted. Leave application. 4.The Jewel Appraisers were paid The amount was paid on a minimum amount per month commission on basis by the which was some what akin to loan. Salary.
But simply the respondent bank was rejected for their claim for regularisation saying that, there is no relationship between employer and employee and there is no control over the Jewel Appraisers by the second respondent bank. Therefore you are employing on the basis of the Commission. Hence you are not under the workmen. Hence your claim is rejected.
11.He further submits that for the past 30 years, the Jewel Appraisers are doing the work of
(i) Issuing the application by the branch,
(ii) Seeking sanction of limit for granting jewel loan to the borrowers,
(iii) Filling up the application form on behalf of the borrowers,
(iv) Issuing jewel loan notice,
(v) Issuing appraisers certificate,
(vi) Issuing Application for loan against Gold ornaments,
(vii) Receiving Identification Memo,
(viii) Making entries in and maintaining register in respect of jewels pledge,
(ix) Issuing application for release of gold ornaments and
(x) Issuing and receiving letters of indemnity as mentioned Annexure 1 to 8 in the Panel Manual.
Therefore the appraisers work cannot be rejected or omitted by the second respondent bank. It is a main source of income of the Bank. Further the second respondent bank is having minimum 25% of total income of the bank's business through jewel loan and so the jewel appraisers are indispensable. The above said works are done by the appraisers, in the second respondent bank it has been clearly shown that the appraisers are regular employees of the bank and their entries and signatures are made in all the receipts with regarding to the loan process and CCTV also reflected their attendance and regular presence during banking hours. Therefore the jewel appraisers cannot do any independent business apart from this work since they are whole day working in the Bank and it is there only source of livelihood. Hence, the Jewel Appraisers are having all the requisite qualifications and eligibility as per the nature of work to be regularized in their services.
12.He further submits that as per the Letter dated 14.11.1994 by the second respondent bank saying that the Goldsmith is required to give only the profession of opinion in the security offered for pledging, apart from the professional opinion, a Goldsmith does not do any other work clerical or otherwise. But the appraisers are doing so many clerical works which are related but not related in favour of Jewel loan. Further the second respondent bank is having effective control and discipline over its appraisers. The appraisers were transferred from their home branch to another branch within a distance of about 50 kilometers. The inter change not transfer which was informed by the bank to the appraisers. This would indicate that in any view, the appraisers are an employees under for Bank and it is also proved that there is employer employee relationship.
13.He further submits that during the pendency of the writ petition in W.P.No.1947 of 1980 which was filed by the Indian Bank to set aside the award passed by the Industrial Tribunal, Chennai in I.D.No.25 of 1977 dated 03.12.1979. The second respondent bank implemented new system of empanel Appraisers. But there is no power to alternate any systems which are under the question of law to be decided by the Hon'ble Apex Court. After implementing the new system in April 1983, the Bank is not following the rules and regulations of the second respondent Bank Manual for Appraisers. The second respondent bank stated that, the engaging of Jewel Appraisers is like that of maintaining a Panel of Advocates and Engineers for loans on immovable properties. He further submits that the Engineers and Advocates of the bank are approached in their places by the customers and they can meet the customers at their convenient time. On the other hand appraisers are asked to come and sit in the bank for the whole day and meet the customers in the Bank in the business hours of the bank and also they are having to maintain the records about the Jewel Loan issued and the details of customers and keep the pledged jewels in safe custody. But the Jewel Appraisers work have been entirely different from bank panel advocates and Engineers. The appraisers have been working from the beginning of the Banking hours and to the end of the Banking hours. The appraisers should be present at the Bank premises on all working days, during the banking hours, so it is clearly proves that the appraisers working hours and working place are the same as regular employees of the Bank.
14.He further submits that in the year of 1977 the same Association filed the petition before the Industrial Tribunal, Chennai in I.D.No.25 of 1977 the Tribunal had passed the award in favour of the workmen saying that the Jewel Appraiser of the Petitioner Association are the Workmen under Section 2(S) of Industrial Disputes Act and they are entitled to all the benefits as part time employer of the bank and further directed the management to regularize their service of Jewel Appraisers. The same has been confirmed by the single Judge of this Court in W.P.No.1947 of 1980 dated 14.02.1986. The single Judge order again filed an appeal by the second respondent bank before the Division Bench of this Court in W.A.Nos.330 and 350 of 1986. The same was dismissed on 03.03.1990, in favour of the petitioners / workmen again the Indian Bank filed the SLP before the Hon'ble Apex Court in S.L.P.No.10054 of 1990 on 10.10.1990 the same also dismissed by the Hon'ble Supreme Court by giving findings to the Jewel Appraisers of the Indian Bank. The Jewel Appraisers of the Indian Bank, the award in I.D.No.25 of 1977 has become final to the effect that as per the terms and conditions of the service, they being employed by the Indian Bank remained workmen within the meaning of Section 2(S) of Industrial Dispute Act 1947. As per the award of the Industrial Tribunal the Indian Bank was to regularize the workmen and after retirement of the Jewel Appraisers they can obtain all the benefits from the Indian Bank, now that the workmen also receiving the pension. The above said aspects has been applicable to this petitioners association. As per the Industrial Tribunal award this petitioner also is to be regularized and to be paid all the monetary benefits. This is the same set of facts, the Jewel Appraisers of the petitioners association are doing hard sincere service, but they are not been regularized.
15.He further submits that without given any notice and opportunity to one of the appraisers of the association Mr.M.Sivaprakasam who is the appraiser of the Indian Bank at Reddiarpalayam Branch, Pondicherry on 27.03.2014 the Indian Bank dismissed him from the service without assigning any reason via orally. In one more person, Senthil Murugan Appraiser, Indian Bank, Dindigul Main Branch also was orally dismissed from the service on 04.07.2014 by the Indian Bank without assigning any reason. Now the Indian Bank is trying to dismiss some other appraisers from the petitioners association. If the Indian Bank dismisses some other persons from the Association, they will be put to irreparable loss and hardship and struggling to running their families. Hence it is just and necessary for restraining the second respondent from ousting the petitioners from their services in respect of the Indian Bank in various branches and further direct the second respondent to regularize the petitioners services in various branches of Indian Bank. Hence, this writ petition is filed.
16.The respondents 1, 3 and 4 filed counter statements and resisted the above writ petition. The respondents submit that the Jewel Appraisers in the Indian bank are not workmen as defined under Section 2(k) of the Industrial Disputes Act, 1947. The duty of the jewel appraisers is to appraise the jewels in the presence of borrowers and Manager / Office-in-charge of jewel advance within the bank premises and to issue certificates in respect of the jewels appraised and appraiser fee is directly paid by the intending borrower for the professional services rendered. The appraiser fee payable is Rs.0.25 or 0.30 per Rs.100 of loan amount with a minimum of Rs.2.50 per loan subject to a maximum appraiser fee collectable from intending borrowers is Rs.300/- per loan. There exists no employer-employee relationship between the Jewel Appraisers and the Indian Bank.
17.It is submitted that the panel of jewel appraisers have been raising disputes and filing petitions before this Court periodically. The Hon'ble Supreme Court of India in the case of IOB vs. Workmen, (2006) 3 SCC 729, held that the jewel appraisers are not workmen and they are not entitled to any relief. Further, the All Banks Appraisers Federation, Tamil Nadu, represented by its General Secretary, Shri.K.Vijayarangan, filed a batch of writ petitions before this Court, in the year 2004 against the Government of India, Ministry of Labour and 12 Public Sector Banks regarding the matter of absorption of jewel appraisers as part time employees in the clerical cadre. This Court in its order dated 07.08.2009 dismissed the claim made by the petitioner federation, holding that they are not entitled for any relief. It is submitted that the Hon'ble Supreme Court of India in the case of IOB vs. Workmen (2006 3 SCC 729), held that the jewel appraisers are not workmen and that they are not entitled to seek any relief. It is submitted that the case decided by this Court in the case of All Banks Appraisers Federation, Tamil Nadu, represented by its General Secretary, Shri.K.Vijayarangan filed a batch of writ petitions before this Court in the year 2004 against the Government of India, Ministry of Labour and 12 Public Sector Banks regarding the matter of absorption of jewel appraisers as part time employees in the clerical cadre, which was dismissed vide order dated 07.08.2009 will justify the status of jewel appraisers in various public sector banks.
18.It is submitted that subsequent to the order in S.L.P.No.10054 of 1990 dated 10.10.1990, the Hon'ble Supreme Court of India in the case of IOB vs. Workmen (2006 3 SCC 729), held that the jewel appraisers are not workmen and they are not entitled to seek any relief. It is submitted that the case decided by this Court in the case of all Banks Appraisers Federation, Tamil Nadu represented by its General Secretary, Shri.K.Vijayarangan filed a batch of writ petitions before this Court in the year 2004 in W.P.Nos.7199 to 7204, 8813 and 10856 of 2004, 10857 and 17858 of 2004, 8188 and 8169 of 2004 against the Government of India, Ministry of Labour and 12 Public Sector Banks regarding the matter of absorption of jewel appraisers as part time employees in the clerical cadre, which was dismissed vide order dated 07.08.2009 will justify the status of Jewel Appraisers in various public sector banks. For the reasons aforestated, it is prayed that this Court may be pleased to dismiss the above writ petition No.28048 of 2014, as being devoid of merits.
19.The second respondent namely Indian bank has filed a counter statement and opposed the above writ petition. The second respondent submits that the impugned order that is challenged by the petitioner is quasi judicial in nature passed by a Competent Authority under the discretion vested in him by the Industrial Disputes Act, 1947. Hence any judicial review can only be on limited grounds and this Court while exercising the writ jurisdiction cannot, as he advised to submit, get into the merits of the issue. The petitioner's prayer directing the second respondent to regularise the services of the petitioner requires appreciation of evidence and considering other finer aspects of the case in detail for proper adjudication which cannot be gone into by this Court and hence the relief as sought for cannot be granted besides it not being maintainable. He submits that the jewel appraisers were never in the service of the second respondent bank at any relevant point of time. They have been performing the job only as an independent skilled person. It is also denied that they also always work from the start of Banking hours till the end. The services of Jewel appraisers are used only for the specific purpose of assessing the weight and quality of jewels. The presence of jewel appraisers is only required as and when there is any need for grant of jewel loan and they can leave the branch immediately after completing the assessment. They do not have any fixed hours of work.
20.He submits that advancing loan on pledged jewels is not a main stream of banking on which the second respondent bank's revenue is dependent. Such kind of work cannot be called as permanent work, as there is no guarantee of jewels being pledged daily for availing loan, much less indispensable as already explained above. Jewel appraisers role is restricted to checking the quality of the jewel that the customer pledges for loan and certifying the quality of the jewels pledged and its market value. The decision as to extension of the loan and the quantum is left to the discretion of the branch manager and the appraiser has no role to play in this matter. They never fill up loan forms as alleged but only the jewel appraiser form and the appraising fees / Commission for professional services rendered paid to the appraisers are completely borne by the customer and not by the second respondent bank. Therefore the appraisers are not under the pay roll of the second respondent bank at all. The jewel appraiser's role ends with giving the certificate assuring the quality of the jewel that is to be pledged. As contended by the petitioner they do not perform any duties of disbursement or follow up of loan as alleged. The appraiser's certificate is independent of the loan application and it clearly lays down the boundaries of the duties of appraiser. No other work is performed other than what is required for apprising the jewels. Moreover employees of the bank are assigned with unique Service Record Number, unique log in Identity and password which are mandatory for performing any kind of work including clerical and as the jewel appraisers, who are not the employees of the second respondent bank, are not provided with such service record number or identification number, no circumstances can arise demanding their discharge of clerical functions. They are free to be engaged by more than one bank. The allegations that the appraiser is required for other clerical work incidental to jewel loan and follow up and that they fill up loan application and obtain signature of borrowers and that their work is permanent in nature all are concocted and without substance.
21.He submits that the second respondent bank, while availing the services of the jewel appraisers has fixed a ceiling as per the allowed norms prevailing in the Bank which happens to be Rs.3/- per every Rs.1000/- of loan extended subject to a maximum of Rs.300/- per loan. This is done to ensure uniformity in the fees structure among the branches. By no stretch of imagination can this be considered as wages as only the ceiling is fixed in charging the commission per loan. Such a limit is laid down for preventing the appraiser from charging exorbitantly from the bank customers. With regard to appraisal of the jewels inside the Bank premise, it is only for the security reasons of the Bank to rule out any tampering done by third parties and for the satisfaction of the customer with regards to the procedure of the appraisal. All the necessary equipments available in the Branch of the second respondent bank are only used for security and quality control reasons. For these reasons they cannot be treated on par with the employees of second respondent bank. Further, he submits that the appraisers are not barred from doing any private business. Appraisers are free to do their private business outside the premises after completing the jewel appraisal works. They are never asked to stay inside the premise when they have no work of appraising. In fact, the services of some jewel appraiser are availed by multiple banks simultaneously. This goes a long way in establishing that they are never under the control of the second respondent bank.
22.He submits that the method of fixing professional service charges / commission and payment has already been described above and it is clear that there is no question of deducting the professional service charges / commission when they absent themselves. For the service they render they always get paid by the customers without any intervention of the second respondent bank. It is denied that the jewel appraisers are subject to the discipline and control by the manager. There are absolutely no rules or regulations governing their conduct. He submits that when the second respondent has no control over them, the question of giving a break never arises in the first instance. The jewel appraisers are their own masters. It is humbly submitted that there is no requirement of seeking leave by jewel appraiser as he is not employed by the bank. The jewel appraiser will be empanelled by the bank and there are no fixed working hours. There is no guaranteed payment or monthly wages and only charges paid by the potential borrower on the basis of the jewel appraised by them. This respondent bank has no control / supervision over the nature of work performed by the jewel appraiser and no disciplinary action also to be taken against him. There is no salary and the charges for jewel appraising are paid by the borrower. The jewel appraiser had no retirement of age and no transfer. The jewel appraiser has absolutely no bar to carry on any avocation or occupation apart from rendering the appraisal work to the bank at the request of the borrower. It is submitted that the jewel appraiser are not employed by the bank. In addition to the above, the dispute raised by the petitioner in the above dispute is now well settled in view of the decision of the Supreme Court in Indian Overseas Bank Vs. Workmen reported in (2006) 3 SCC 729. The above issue has been settled by the Supreme Court in the aforesaid decision and the fourth respondent has rightly refused to refer the matter for adjudication. Hence, the question of availing leave or wages does not arises in the said facts and circumstances of the case.
23.He submits that the cost of repetition it is submitted that the respondent bank has been extending loan against the security of gold jewels. The respondent bank empanelled Gold smiths in the panel of jewel appraisers for the limited purpose of ascertaining the weight, quality, purity and market value of the security. Depending upon the requirements and availability of jewel appraisers in the village / town where the branch is located, one or more gold smiths are in the panel of such branch extending jewel loan to serve the Banking Public. A prospective customer intending to raise a loan by pledging gold jewels obtains a certificate from any of these gold smiths in the panel. The charges payable for giving such professional certificate is paid by the customer directly to the concerned gold smith in the panel. To ensure that the jewel appraised by them is the same jewel which offered to be pledged with the bank, the respondent bank is insisting the personal presence of the gold smith at the time of appraisal by the gold smith and pledge of jewels to the bank. For the limited purpose of seeking professional opinion, the respondent bank identified certain gold smiths and empanelled them as jewel appraisers. It is humbly submitted that the respondent bank is having panel of lawyers to give opinion on the deeds of properties proposed to be mortgaged to the bank and also panel of engineers to give valuation of building, plant and machinery etc., for rendering professional services. These panel lawyers / Engineers charge professional fees. Similarly the respondent bank thought it fit and advisable to have a panel of goldsmiths. Just like Engineers and Advocates, these goldsmiths in the panel render independent professional opinion on the jewels proposed to be pledged by a customer in the respondent bank. The borrowers are paying fees / professional charges to Advocates, Engineers for giving opinion on title deeds and valuation certificates, as the case may be. Similarly, the borrowers are directly paying the fees to the empanelled goldsmiths who appraise the jewels. Apart from giving professional opinion on the jewel, these goldsmiths are not doing any clerical work and there is no fixed time to render their services as they are at liberty to make them available for offering their professional services. The goldsmiths who are presently in the panel are only appraising the jewels of the borrowers and the respondent bank does not have any administrative control over them and for the services rendered by the goldsmiths the fees are not paid by the respondent bank, as the intending borrowers are to pay the same directly to the panel appraisers.
24.Despite the dispute raised by the jewel appraiser being non-estin law, the issue was referred for conciliation. Only on appreciating all the material facts and evidences submitted, he gave a conclusive finding that the appraisers can never fall under the category of workmen as defined under Section 2(s) of Industrial Disputes Act. Therefore, there is no infirmity as contended by the petitioner in the said order. The Hon'ble Apex Court's findings was that each and every case is governed by unique set of facts and every case to be decided on considering its own merits. It was found that facts of the Indian Overseas Bank and the second respondent bank were similar to and thus the issue was decided against the petitioner association. IOB's case is squarely applicable to the present case in hand. The petitioner has purposely suppressed the Judgments passed by the various Courts favouring the bank and misrepresented the facts.
25.Contrary to what has been stated by the petitioner the existing state of affairs, to prove that there is no master-servant relationship, is as follows:
i.Working hours of jewel appraisers is not fixed by the Bank. Professional Services of appraisers utilized as and when required.
ii.Commission is not paid by the Bank. The Bank is permitting the customers to pay the eligible professional fee / commission directly to the appraisers for the professional services rendered.
iii.No disciplinary control of appraisers as in the case of staff.
iv.Since appraisers are not staff, transfer of appraiser does not arise. In case of need the professional services of panel appraisers are utilized in the needy branches, if the appraiser desires. No order is issued by the Bank in this regard.
v.No control over the appraisers over the Bank, as they are not required to sign attendance register and there is no leave application for appraisers. Normal supervision to uphold the discipline inside the Branch premises, as applicable to any outsider / customer is required to be maintained, since the organization is a Public Sector, service organization.
vi.Appraisers are not employed either by the local Manager or any higher level supervisory authorities. They are empanelled as Panel jewel Appraisers and their professional services are utilized by the customers for their own benefit and their remuneration is payable in the form of appraiser fees directly from the customers.
vii.Appraisers are not authorized to do any private business inside the premises. However, they are free to take up their private business after completing their specific task, outside the premise of the bank. Also many appraisers are simultaneously empanelled in many banks.
The facts of the Indian Overseas Bank are identical to the case at hand and hence the reference has been rightly denied. The allegations are concocted and unsustainable.
26.The customers directly approach the jewel appraiser for getting the certificate to secure loan from the bank. Getting the appraiser certificate and securing loan are independent transactions. There is no certainty in the sanction of loan just because the appraiser has certified the quality of jewels that are going to be pledged. They are not entitled to do any other task, as claimed in the affidavit. All the allegations are imaginary and without substance. Appraisers are not entitled and permitted to do any clerical work, as performance of any work integral to the second respondent bank requires unique service number and identification card. This has also been appropriately answered in para-4 of the counter affidavit. By following service rules and regulations second respondent bank employees are transferred to branches as per service rules. The averment that the appraisers are transferred is actually misleading as they are never transferred following rules and regulations of the bank as they are not the employees of the Bank. It is only for the sake of convenience in making them available to the customers in every branch they are requested to be present wherever there is necessity. However, this does not happen regularly. This is not binding on them and the appraisers themselves choose whether to comply with it or not to offer their professional services. Even in case of non-compliance the bank cannot take any kind of action against them. This does not in any way establish master-servant relationship. They are recognized by the Tax-authorities as independent individuals not associated with the second respondent bank, as are directly served with assessment notice.
27.The case that petitioner is relying on is completely distinguishable on facts from the case at hand. The jewel appraisers are similarly placed as bank panel lawyers and engineers. As already submitted, the second respondent bank / branch maintains the list of Panel Jewel Appraisers just as in the case of Panel advocates / Panel Engineers and their services are used for the benefit of customers. Bank is allowing the panel jewel appraiser to charge a professional fee, by way of appraiser charges directly from the customers. The petitioner's averments have been denied in the preceding para of his submission. The facts of the case stated by the petitioner are different from the facts of the case at hand and hence it cannot be applied in the present system of empanelment of Jewel appraisers. Since, there is no employer employee relationship between panel appraiser and second respondent bank, as explained in the preceding paras, there is no question of dismissal of appraiser, as there is no written order / communication issued to the aggrieved persons. However Bank in order to de-panel any of the panel appraisers or include additional members as panel appraisers, make suitable modifications as and when there is a necessity for the same, taking into account the business of the bank and the larger interest of the customers of the Bank. Allowing this kind of writ petition will only encourage back door entry into the bank to claim employee status which otherwise is not possible. Hence for the aforesaid reasons it is humbly prayed that this Court dismiss the writ petition.
28.The highly competent counsel Mr.M.V.Muralidharan appearing for the petitioner submits that the petitioners namely the Indian Bank Jewel Appraisers Association, who have been declared as workmen in the Indian Bank case, as per the order passed in I.D.No.25 of 1977 dated 03.12.1979. The same was upheld by the Hon'ble Supreme Court of India in S.L.P.No.10054 of 1990.
29.Further, the respondent Bank have not been denied regarding the place of work, hours and duty and supervision by the respondent Bank hence the requirement for bringing the jewel appraisers under the definition of workmen has been practically accepted by the respondents 1, 3 and 4. Further, the petitioner's Association employees have to perform their duties in the Bank premises alone, besides the respondent bank is providing weighing machines, weights and other instruments. As per the circular of the bank the employees have to be present during the working hours and perform their work as alloted to them.
30.The learned counsel has submitted a written submissions which are as follows:-
The loan applications, entries and control register for release, redemption and auction are being entered by the petitioners association, the auction proceedings are recorded and signed by the Manager and Appraisers and other officers present at the auction which would clearly prove the services rendered by the Jewel Appraisers right from the pledging of the Jewels till their disposal. This would shows the participation of the Jewel Appraisers in the Jewel Loan proceedings from the beginning till the end this work further shows the control supervision of the Management Bank and the participation of the jewel appraisers in the entire jewel loan process. The Manager should satisfy himself without completely taking the Appraisers Certificate regarding the genuineness purity of the weight of ornament by causing actual verification to be done by the appraisers in his presence thereby showing supervision. The deduction to be made to arrive at the net weight of the jewels excluding the weight of thread, wax and stones and the percentage of deduction for impurity and dust are being instructed by the Manager which has been contemplated by the Hon'ble Supreme Court.
The petitioners association members are being subject to transfer and several Jewel Appraisers had been transferred from one branch to another branch. Subsequent to this Court order sent to the Branch Managers informing them about this Court orders and issuing orders not to transfer or remove any of the jewel appraisers attached to the respective branches would clearly prove that the petitioners are totally under the control of the management of Indian Bank and hence the relationship of employer and employee is clearly established.
The petitioners though are being paid commission, the jewel appraisers in fact are doing clerical work such as filling up of loan applications, entries, maintaining Control Register wherein the particulars pertaining to the Jewel Pledge is entered control Register which is maintained by the petitioners while the pledge jewels are redeemed, released or auctioned. The loan officer or Bank Manager examines the Control Register are being satisfied, sign in the said Register. This aspect also shows the supervision and control over the petitioners jewel appraisers by the management. The jewel appraisers duty include the checking of packets containing the pledged jewels once in a month. The Jewel Appraisers are being paid for their service from the bank.
It is further submitted that they are often deputed to other branches for conducting verification of the jewels pledged. The petitioner have to weigh the Jewels handed over to them by the Branch Manager, check the quality as per the direction of the Branch Manager in the presence and under the supervision of the Inspector from Head Office Inspection Department.
The charges for the service of the deputed appraisers and the concern bank appraisers are being paid by the management bank from their account and credited directly to the appraiser account. This is yet another fact which proves the payment of money from the management to appraisers and further strengthens, the master and servant relationship.
It is further submitted that the appraisers have to be present at the time of releasing the jewels and also during the period of auction. In cases of default the petitioners / appraisers are sending notices to the borrowers on the instruction of the Branch Managers which further proves that the petitioners are doing clerical work also.
It is submitted that in respect of overdue jewel loans on the instructions of the Branch Manager the appraisers have to meet the concerned borrowers and intimate the details to him. The Management bank pays necessary allowance out of its own accounts for the said service rendered by the appraisers. The appraisers must always go in person to inform the borrower and he cannot refuse to go. The petitioners have to be present in the bank on all working day on during working hours. The jewel appraisers cannot absent themselves without obtaining permission from the Bank Manager.
The jewel appraisers are being appointed on their fulfilling the following conditions:
a)the persons having experience in the field of weighing, testing the quality of fineness of the gold, preferably from the community of Goldsmith, having experience 10 years and above.
b)having a good family back ground and conduct, character which would be arrived at by the Branch Manager through enquiries.
c)he should be a local jeweller. (Goldsmith)
d)he should have a clean record with no case registered against him by the police or without any suspicion of having defrauded customers.
e)he must have basic education. He should have studied atleast upto 8th Standard and should know the local language.
f)The age of the jeweler who is to be appointed as an Appraiser should be above the age of 30 years and below 60 years. The qualification age and other requirement clearly indicate the Master and Servant relationship and differs from the Jewel Appraisers of the Indian Overseas Bank.
g)The applications for being appointed as Jewel Appraisers are received by the Bank Manager and after his enquiries the said applications and the Branch Manager's Report is sent to the Regional or Zonal Manger.
h)It is the Regional or Zonal Manager who has to approve the applicant and only on his approval, the Jewel Appraisers are recruited.
i)A total verification of the jewel pledged should be done at the time of resignation or termination of a Jewel Appraiser. The Jewel Appraiser services can be terminated by the Management Bank which proves control of the Management Bank. The Jewel Appraisers appointment on the approval of the Regional or Zonal Manager and termination of the services of the Jewel Appraisers by the Management Bank clearly proves the Master and Servant relationship.
j)No jewel loan would be permitted for the jewel appraisers or his relative or persons introduced by him. The staff members their relatives, jewel appraisers are not permitted to participate in the auction proceedings of jewels pledged in the Bank which would show the restriction and conditions imposed further strengthening the control over the Jewel Appraisers in par with the staff members would further strengthen the fact of control and thereby yet another fact to prove Master and Servant Relationship.
The Apex Court had distinguished the Indian Bank case with that of the Indian Overseas Bank, distinguished the difference between the Jewel Appraisers of both the banks and clarified that the Indian Bank case was different from the I.O.B. case, the Apex Court distinguishing the regular employees from the Jewel Appraisers had noted that the Jewel Appraisers of the I.O.B. had
1. No qualification.
2. Direct engagement by the Local Manager.
3. No fixed working hours.
4. No guaranteed payment, only commission paid.
5. No disciplinary control.
6. No control / supervision over the nature of work to be performed.
7. Charges are paid by the borrowers.
8. No retirement age.
9. No transfer.
10. No bar to carry on any avocation or occupation.
The present petitioner Indian Bank Jewel Appraisers satisfy most of the criteria laid down by the Apex Court. The guideline found in the manual of instructions.
The appraisal of gold ornaments received as security for jewel loans should be done by a person experienced in this filed a goldsmith. He should invariable be a local jeweler, preferably from a family of goldsmith, with experience for about 10 years in assessing the weight, value and the fineness of gold i the ornaments either with stones studded or without stones. The manager must ascertain, through local enquiries, the family background, character and conduct of the person to be engaged as an appraiser. He must make sure that he had a clean record, with no case registered against him by the police or without any suspicion of having defrauded his customers. He must have some basic education, (studied atleast upto the 8th standard) and also be conversant with the local language. His age may be above 30 years but should not exceed 60 years.
It is further submitted that the various transfer orders deputation orders, the payments made by the bank to the Jewel Appraisers for the services rendered such as:
a. Counting of the packets every month;
b. Charges for re-appraisal done periodically;
c. Payment for services rendered during deputation;
d. Maintaining of Control Registers which contains the particulars of jewels pledged and auctioned or redeemed.
e. Auction notices prepared by the Jewel Appraisers.
f. The circular of the Banks Head Office and Branch Offices pertaining to the services of the jewel appraisers which have been separately mentioned in the typed set would clearly proves the work done by the jewel appraisers right from the appraisal of the jewel before sanction of the loan, participating in the jewel loan process till the auction or redemption of jewels would clearly establish the Master and Servant relationship between the Management and the Jewel Appraiser.
It is humbly submitted that present petitioners had been working as Jewel Appraisers as on the date passed by the Hon'ble Apex Court is binding upon the parties to the present case which the respondent bank had willfully failed to comply the orders of the Hon'ble Apex Court which causes serious prejudice to the petitioners herein. Hence, it is humbly submitted and prayed that this Court may be pleased to allow the writ petition.
31.The learned counsel appearing for the second respondent submits that the impugned order passed by the fourth respondent who is the quasi judicial authority. The petitioner's prayer directing the second respondent to regularize the services of the petitioner requires appreciation of evidence and considering other finer aspects of the case in detail for proper adjudication which cannot be gone into by this Court. Hence, the above writ petition is not maintainable. The jewel appraisers were never in the service with the respondent bank. They have been performing the job only as an independent skilled person. It is also denied that they also always work from the start of banking hours till the ending of banking hours. The services of jewel appraisers are used only for the specific purpose of assessing the weight and quality of jewels. The appraisers can leave the branch after completing the assessment, they do have any fixed working hours. Such a type of work cannot be termed as permanent work. The jewel appraisers role is limited to checking the quality of jewels and its market value. The appraisers were paid by the customers and not by the bank. As such, there is no employer-employee relationship. Further, they are free to be engaged by more than one bank. The bank has fixed a ceiling on payment of Rs.3/- per every thousand. Therefore, the appraisers cannot be treated on par with the employees of the bank, the appraisers are not barred from under taking any private jobs, they are never asked to stay inside the bank where there is no appraising assignment. There is no rules and regulations covering their conduct.
32.The learned counsel further submits that there is no guaranteed payment or monthly wages and only charges paid by the potential borrower on the basis of the jewel appraised by them. The jewel appraiser had no retirement of age and no transfer. The bank does not have any administrative control over them. Therefore, the appraisers are not staff and they are not required to sign attendance register. The customers and the appraisers for securing loan are independent transactions. Hence, the very competent counsel entreats the Court to dismiss the above writ petition.
33.The very competent counsel Mr.Haja Mohideen Gisthi appearing for the respondents 1, 3 and 4 submits that the Jewel appraisers in the second respondent's bank are not workmen as defined under Section 2(k) of the Industrial Disputes Act. The appraiser fee is directly paid by the intending borrower for the professional services rendered. As such, there is no employer employee relationship between the jewel appraisers and the Indian Bank. The Hon'ble Supreme Court observed that in the case of I.O.B. vs. Workmen, held that the jewel appraisers are not workmen and they are not entitled to any relief, since they are part time employees. The learned counsel further submits that the bank had not maintained any pay acquittance or attendance register or any service records to the appraisers for their restricted services. As such, there is no nexus between the bank and the appraiser or employer-employee relationship. Hence, the learned counsel entreats the Court to dismiss the above writ petition.
34.On considering the facts and circumstances of the case and arguments advanced by the learned counsels on all sides and on perusing the typed set of papers, this Court is of the view that if a comprehensive enquiry is conducted for adjudication, no one would be prejudiced. Therefore, this Court directs the second respondent to conduct a detailed enquiry in the presence of the third respondent and the petitioner after prior notice to the parties concerned and then pass final orders. Hence, the above writ petition is disposed of with the above direction. Consequently, the order passed by the fourth respondent made in No.L.12011/68/2014-IA(BII) dated 31.10.2014 is quashed.
35.In the result, the writ petition is disposed of with the above direction. No costs. Consequently, connected miscellaneous petitions are closed.
25.08.2015
vs
Index: Yes.
Internet: Yes.
To
1.Government of India,
Rep. by its Secretary,
Ministry of Labour and Employment,
Shram Sakthi Bhavan,
New Delhi 110001.
2.Indian Bank
Rep. by its General Manager (HR),
Corporate Office,
254 - 260, Avvai Shanmugam Salai,
Royapettah,
Chennai 600014.
3.The Assistant Commissioner of Labour (Central),
Sastri Bhavan,
No.26, Haddows Road, Nungambakkam,
Chennai 600006.
4.The Desk Officer,
Government of India/Bharat Sarkar,
Ministry of Labour/Shram Mantralaya,
New Delhi.
C.S.KARNAN, J.
vs
Pre-Delivery Order made in
W.P.No.33464 of 2014
and
M.P.Nos.1 and 2 of 2015 & 2 of 2014
25.08.2015