Karnataka High Court
Sri. N Chandrashekhara vs Canara Bank on 27 March, 2023
Bench: Chief Justice, M.G.S. Kamal
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WA No. 214 of 2023
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 27TH DAY OF MARCH, 2023
PRESENT
THE HON'BLE MR PRASANNA B. VARALE, CHIEF JUSTICE
AND
THE HON'BLE MR JUSTICE M.G.S. KAMAL
WRIT APPEAL NO. 214 OF 2023 (S-RES)
BETWEEN:
1. SRI. N. CHANDRASHEKHARA
S/O NAGARAJAPPA
AGED ABOUT 38 YEARS
RESIDING AT J.N. KOTE
CHITRADURGA TALUK - 577 532.
2. SRI. RAMESHA T.,
Digitally S/O THIPPAIAH
signed by AGED ABOUT 38 YEARS
SUMA B N RESIDING AT DURGAMMA
Location: TEMPLE, S.C. COLONY
High Court BEDAREDDIHALLI
of
CHALLAKERE TALUK - 577 543.
Karnataka
3. SRI SIDDALINGASWAMY G.S.
S/O SHIVAMURTHY G.P.
AGED ABOUT 30 YEARS
RESIDING AT HIREUDA
DEVARAHALLI POST
CHANNAGIRI TALUK - 577 213.
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WA No. 214 of 2023
4. SRI AVINASH M.,
S/O MADDAPPARAJU
AGED ABOUT 31 YEARS
R/AT NO. 3846
ASWATHKATTE ROAD
KYTHAMARANAHALLI
MYSORE - 570 019.
5. SRI. YATHISH M.,
S/O MALLIKARJUNA
AGED ABOUT 27 YEARS
R/AT NO. 4780
7TH CROSS
ARALIMARA ROAD
KYATHAMARANAHALLI
MYSORE - 570 019.
6. SRI. LOHITH KUMAR G.,
S/O GOVINDAPPA
AGED ABOUT 25 YEARS
R/AT KASHIPURA VILLAGE
HOLALKERE TALUK - 577 557.
7. SRI H.K. VENKATESHA
S/O KALEGOWDA
AGED ABOUT 41 YEARS
B.H.ROAD, KERALAPURA
ARAKALAGOODU
HASSAN - 573 176.
8. SRI NAVEENA H.J.
S/O JAVARE GOWDA
AGED ABOUT 32 YEARS
R/AT HOSKOTE VILLAGE
YELWALA HOBLI
MYSORE - 571 130.
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WA No. 214 of 2023
9. SRI KIRAN KUMAR
S/O MANJUNATHA
KARPEHALLI
AGED ABOUT 29 YEARS
R/AT KADAVIGERE POST
SIRA TALUK
TUMKUR DISTRICT - 572 125.
...APPELLANTS
(BY Ms. AVANI CHOKSHI, ADVOCATE FOR
SRI. MAITREYI KRISHNAN, ADVOCATES)
AND:
1. CANARA BANK
HAVING ITS HEAD OFFICE
AT No. 112, J C ROAD
BENGALURU - 560 002
REPRESENTED BY ITS
MANAGING DIRECTOR AND CEO
2. CHIEF GENERAL MANAGER
CANARA BANK
HEAD OFFICE AT NO.112
JC RD
BENGALURU.
3. SRI GANESH NAIK K.,
S/O VAMAN NAIK
AGED ABOUT 39 YEARS
R/AT KOPPALA KODI HOUSE
KOKKADA
BELTHANGADI TALUK - 574 198.
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WA No. 214 of 2023
4. SMT. RENJU R.,
W/O RAJESH
AGED ABOUT 30 YEARS
R/AT HARA HOUSE
KOKKADA POST
BELTHANGADI TALUK - 574 198.
5. SRI. YASHAVANTHA,
S/O SHEENA SHETTIGAR
AGED ABOUT 32 YEARS
RESIDING AT NO 01-101
NAVALE HOUSE
HATHYADKA ARASINAMAKKI
BELTHANGADI - 574 190.
6. SMT PREETHI J. SHETTY
W/O JAYANTH SHETTY
AGED ABOUT 38 YEARS
RESIDING AT NO 03-70N (3)
KAMALA NIVASA
KUJUMAGUDDE
KUMPALA, KOTEKAR POST
MANGALORE - 575022.
7. SMT. RADHIKA
W/O DAYANANDA
AGED ABOUT 39 YEARS
RESIDING AT No.3-125
F/5, OPP. PF QUARTERS
BHAVISHYA NAGAR
THIRUVAIL
VAMANDOOR - 577 028.
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WA No. 214 of 2023
8. SRI. VENKATESH M.,
S/O DUSHYANTH
AGED ABOUT 27 YEARS
RESIDING AT NO 1-27
MUDIPA HOUSE
KAIRANGALA VILLAGE
BANTWALA TALUK - 574 153.
9. SRI. SACHIN NAYAK
S/O BALAKRISHNA NAYAK
AGED ABOUT 31 YEARS
RESIDING AT SARASWATHI
NIALYA, MADAGA HOUSE
ATHRADI POST
UDUPI - 576 107.
10. SRI. THUKARAM
S/O ANGARA
AGED ABOUT 27 YEARS
RESIDING AT GW-63
KRISHNAPURA
6TH BLOCK, GOPI NIVANA
SURATHKAL
MANGALURU - 575 014.
11. SMT. RAJESHWARI
W/O NARENDRA
AGED ABOUT 36 YEARS
RESIDING AT No.5-9-9776
THINGALAYA COMPOUND
NAGA BRAMHA TEMPLE
ALAKE KUDROLI
KODIYALBAIL
MANGALORE - 575 003.
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WA No. 214 of 2023
12. SMT. SAVITHA
W/O ASHOK
AGED ABOUT 33 YEARS
RESIDING AT 4/162
MARSYANNAPAL ROAD
NEAR SAIDHAM EXTENSION
MADOOR, KONDANA
MANGALORE -575 022.
13. SMT. NIRMALA SHETTY
W/O CHADRASHEKARA SHETTY
AGED ABOUT 36 YEARS
RESIDING AT NAIYAGARAMANE
NEAR SIDDI VINAYAKA TEMPLE
BIKARNAKATTE
MANGALORE - 575 005.
14. SMT SAVITHA S. POOJARY
W/O GANESH
AGED ABOUT 36 YEARS
RESIDING AT HOUSE No.5 -209
GUDDE HITHALAMANE
MALURU VILLAGE
GURUPURA
DAKSHINA KANNADA - 574 145.
15. SRI. SURAJ
S/O AJITH
AGED ABOUT 31 YEARS
RESIDING AT No.7P2/16
CREMATION GROUND
COMPOUND
KODIYALBAIL
MANGALORE - 575 003.
16. SMT. MONIKA
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WA No. 214 of 2023
W/O PURUSHOTHAMMA
AGED ABOUT 25 YEARS
RESIDING AT No. 21/117
DEVI KRIPA COMPOUND
NEAR OVERBRIDGE
THOKKOTTU
MANGALORE - 575 017.
17. SMT. SUMATHI
W/O GANESH SHETTIGAR
AGED ABOUT 41 YEARS
RESIDING AT No. 03-146
BAILAKODI HOUSE
ADYAR POST AND VILLAGE
MANGALORE - 565 007.
...RESPONDENTS
(BY SRI. T.P. MUTHANNA, ADVOCATE FOR C/R1)
THIS WRIT APPEAL IS FILED UNDER SECTION 4 OF THE
KARNATAKA HIGH COURT ACT PRAYING TO 1. ALLOW THIS
WRIT APPEAL AND SET ASIDE THE JUDGMENT OF THE
LEARNED SINGLE JUDGE DATED 29/11/2022 PASSED IN WP
NO.12877/2022 AND GRANT THE RELIEFS SOUGHT THEREIN.
2.DIRECT THE RESPONDENT TO PAY THE APPELLANT THE
COSTS OF THESE PROCEEDINGS.
THIS APPEAL COMING ON FOR PRELIMINARY HEARING,
THIS DAY, M.G.S.KAMAL J., DELIVERED THE FOLLOWING:
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WA No. 214 of 2023
JUDGMENT
This writ appeal is directed against the order dated 29.11.2022 rejecting the W.P.No.12877/2022 filed by the appellants. The said writ petition was filed by the appellants herein seeking quash of an Inter Office Memorandum dated 09.03.2022 bearing reference No.BLC/HRM/E-12/2106/2022 and an E-mail dated 10.03.2022 issued by the respondents and other communications and also for direction to quash the outsourcing of jobs undertaken by the appellants including grant of housing keeping contract to one M/s.Field Marshal Services, Mangalore as per Inter Office Memorandum dated 25.03.2022 and also for a direction to the respondent-Bank to treat the services of appellants as permanent employees of the respondents on scales of pay with effect from their date of initial employment.
2. It is the case of the appellants that they are working as daily wage casual workers in various branches and offices of respondent-Bank which is a Public Sector Bank and that they have been continuously employed for 7 to 11 years. That they were paid their wages by way of cash and have also received -9- WA No. 214 of 2023 bonus payments over the years. It is their further case that they have been handling duties in the nature of sweeping, cleaning, counter work and other sub-staff-peon cadre duties. Besides, assisting in various banking process such as canvassing for deposits, assisting in recoveries, filling forms etc. That they have received appreciation for their work from their respective Branch Managers.
3. That from the beginning of March, 2022 the Bank Management started issuing Inter Office Memorandum regarding employment of "Unauthorised Personnel" in Branch offices vide Inter Office Memorandum dated 09.03.2022 relating to Bangalore Circle under the instructions of respondent-Bank stating that no unauthorised engagement of person shall be allowed under any circumstances and the concerned official shall be held personally liable for such unauthorised engagement. That apart the branch Managers incharge were strictly advised to refrain from forwarding any representation for regularization/absorption in future. They were also instructed to confirm that no outsider was engaged in place of housekeeping/sub-staff. Similar memorandums were
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WA No. 214 of 2023issued in respect of other regional offices across the State. That the appellants learnt through newspaper publication/notices inviting tenders for house keeping and general cleaning works by the respondent-Bank and they also learnt that one M/s.Field Marshal Services, Mangalore has already been awarded the tender and contract workers have been brought in. That the appellants have been given oral intimation from the Branch Managers that their services would not be permitted to continue in view of the directions of the respondent-Bank. That being aggrieved by the above turn of events the appellants were constrained to file the above writ petition seeking the reliefs referred to hereinabove.
4. The respondent-Bank filed statement of objections to the above writ petition questioning the very maintainability of the writ petition on the premise that the appellants did not have enforceable cause of action. It is also contended that the appellants ought to have approached Central Government Industrial Tribunal under the provisions of Industrial Disputes Act, 1947 for redressal of their grievances since no material had been produced before the Court to show existence of
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WA No. 214 of 2023`master' and `servant' relationship between the appellants and respondent. It is also contended that the respondent-Bank being Public Sector Undertaking has got certain rules, norms in the matter of recruitment of personnel in each cadre adhering to due process. That the respondent-Bank and its branches have permanent employees to carry on the work of cleaning and dusting in the post which is called "Housekeeper-cum- Peon". That in the event of their absence from duty for any reason, branches/offices had engaged persons on intermittent basis. Such persons are engaged purely on day-to-day basis only and have never been appointed through any recruitment process. That the appellants are aware of their nature of employment in the Bank and Bank had neither promised them of regularization of their services nor assured them of the appointment to the sanctioned posts. That the appellants were not even temporary employees but casual workers engaged on daily wage basis and were paid proportionate wages for the work done. That Memorandum of Settlement had been entered on 26.07.2011 between the management of the respondent- Bank and Canara Bank Employees Union (CBEU) for regularization of persons engaged on daily wage basis as on
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WA No. 214 of 202330.04.2010 in PTE vacancies in respective scale wage and on consolidated wage basis in 1/3rd scale wages which was proposed to be done in three batches. Subsequently again in the year 2014 another Memorandum of Settlement was entered into between Management of the respondent-Bank and CBEU for examining the anomalies in the left over cases for regularization of persons. Pursuant to the above settlement no panel list of daily wages were maintained and the bank decided to go for recruitment notifying the vacancies with employment exchange duly adhering to the recruitment norms. That subsequently yet another Memorandum of Settlement was entered into on 20.11.2015 between Management and CBEU wherein terms and conditions with regard to recruitment norms/procedure for filling up the vacancies of house keeping was agreed to, which procedure is as under:
a) Calling the list of eligible candidates from the District Employment Exchange.
b) Through open advertisement by way of publication in local newspaper having circulation in the District where vacancies exist.
c) Posting the advertisement in banks website.
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WA No. 214 of 2023
5. That the candidates were required to fulfill the eligibility criteria mentioned in the Memorandum of Settlement dated 20.11.2015.
6. On the basis of above contentions, dismissal of writ petition was sought.
7. Learned Single Judge after hearing the counsel for the parties and taking note of the law laid down by the Apex Court in the case of
(i) Secretary, State of Karnataka and others Vs Umadevi and others reported in AIR 2006 SC 1806,
(ii) State of Karnataka and others Vs M.L.Kesari reported in AIR 2010 SC 2587
(iii) Sheo Narain Nagar and others Vs State of Uttar Pradesh and anr reported in AIR 2018 SC 233 and also taking note of terms of Memorandum of Settlement dated 20.11.2015 providing for recruitment procedure, held that the appellants failed to demonstrate that their appointment was to the sanctioned posts by the competent authority and that they had rendered more than ten years of service and consequently rejected the writ petition by the
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WA No. 214 of 2023impugned order. Being aggrieved by the same, the appellants are before this Court.
8. Ms.Avani Chokshi, learned counsel for the appellants emphatically reiterating the grounds urged in the memorandum of appeal placed two propositions;
(i) one adhoc/temporary workers cannot be replaced by another; and
(ii) that the appellants had vested right to be considered by the respondent-bank for regularization/absorption.
9. Elaborating on the aforesaid proposition that adhoc/temporary employee should not be replaced by another adhoc/temporary employee, learned counsel relied upon various Judgments of the Apex Court and of this Court, namely,
(i) State of Haryana and others Vs Piara Singh and others reported in AIR 1992 SC 2132,
(ii) Hargurpratap Singh Vs State of Punjab reported in AIR online 2003 SC 405,
(iii) Manish Gupta and anr Vs President, Jan Bhagidari Sameethi and others reported in 2022 SCC Online SC 485,
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WA No. 214 of 2023
(iv)Dheeru Nayak Vs Union of India reported in 2019 (2) AKR 71 Karnataka High Court.
Thus, relying upon these Judgments learned counsel insists that the appellants who have been working at the branches of the respondent-Bank and discharging various duties, though temporarily, cannot be replaced by another temporary arrangement. She submits the action proposed by the respondent-Bank to engage the services of private agency by way of outsourcing would definitely run contrary to the law laid down and reiterated by the Apex Court in the aforesaid Judgments.
10. Further learned counsel for the appellants inviting attention of this Court to various documents in the nature of letters issued by some of the branch Managers of the respondent-Bank recommending the candidature of some of the appellants, submits that these compelling documents are evidence enough to establish continuous engagement of services of the appellants by the respondent-Bank and that the learned Single Judge had not taken the same into consideration while opining that the appellants had failed to demonstrate
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WA No. 214 of 2023their employment with the respondent-Bank. She also refers to certain documents to submit that the appellants are indeed working against sanctioned posts.
11. In furtherance to her second proposition of regularizing the employment of the appellants she refers to the Judgment of Apex Court in the case of
(i) Harjinder Singh Vs Punjab State Warehousing Corporation reported in AIR 2010 SC 1116
(ii) Behilwara Dugdh Utapadak Sahakari Samithi Limited Vs Vinod Kumar Sharma dead by LRS and anr reported in (2011) 15 SCC 209 and submits that the appellants having been deprived of their livelihood indeed have been deprived of their fundamental and constitutional rights. She also submits that the respondent- Bank cannot be permitted to exploit the situation on the basis of the Judgment in the case of Umadevi and in this regard she refers to the case of Malathi Das and anr Vs Suresh and others reported in (2014) 13 SCC 249. Thus, she submits that the appellants have made out their case for the purpose of regularization, in view of their services having been recognized and appreciated by the respective bank Managers who have
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WA No. 214 of 2023recommended for consideration of candidature of the appellants. Hence, she seeks for allowing of the appeal.
12. Per contra, Sri.T.P.Muthanna, learned counsel for respondent-Bank refuting the arguments of the learned counsel for appellants submits that first of all the appellants are not working against the sanctioned posts as the said sanctioned posts are occupied by permanent staff. He refers to a document at Annexure-R-6 filed along with Statement of Objections to point out that the services of appellants were engaged intermittently as and when the permanent staff/employees were not available for any reason and the appellants were paid hourly/daily basis. Drawing attention of this Court to the Memorandum of Settlement he submits that such a settlement was entered into in terms of Section 2(p) read with Section 18(1) of Industrial Disputes Act, 1947 and Rule 15 of Industrial Disputes (Central Rules) 1957 arrived at between the management of respondent-Bank and CBEU, and that the recruitment can happen only in terms of the procedure contemplated thereunder. Hence, he seeks for dismissal of the appeal.
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WA No. 214 of 2023
13. Heard. Perused the records.
14. The contentions of the appellants that an adhoc employee cannot be replaced by another adhoc employee cannot be countenanced in the fact situation of this matter, as rightly taken note of by the learned Single Judge, the appellants have failed to demonstrate that they were appointed against sanctioned posts by a competent authority and that they have rendered continuous service over 10 years. The documents relied upon by counsel for the appellants in the nature of letters of recommendations are of no avail as they are only recommendatory in nature and would not meet the requirement of proof of their employment. On the other hand, they refer to the nature of the work being carried on by them as "daily wager" "coolie", "temporary attender" "house keeping"
etc. As noted in Annexure-R6 filed by the respondent-Bank along with statement of objection justifies the contention of the counsel for respondent that there are permanent staff employed with the staff ID, designation such as HKP, Peon etc., and some of the appellants are working intermittently in the absence of such permanent staff. Thus, in the light of the
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said undisputed material the appellants cannot claim that they have been engaged to render services by the branches of respondent-Bank and have been working between 7 to 11 years and that they are the adhoc/temporary employees of the Respondent-Bank duly appointed as such by a competent authority. The reliance placed on various authority in this regard is of no avail.
15. Above all, even as admitted by the appellants there is Memorandum of Settlement dated 20.11.2015 entered into between the management of the respondent-Bank and CBEU which provides for a process for recruitment and filling up of HKP vacancies. As noted above, the said process of recruitment involves a) Calling the list of eligible candidates from the District Employment Exchange, b) Through open advertisement by way of publication in local newspaper having circulation in the District where vacancies exist and c) Posting the advertisement in banks website. The appellants do not dispute this aspect of the matter and the same is binding. The respondent-Bank therefore cannot be expected either to absorb/regularize the intermittent engagement of the
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WA No. 214 of 2023appellants or treat them on par with the permanent staff, contrary to the terms of Memorandum of Settlement.
16. Learned Single Judge having taken note of the factual and legal aspect of the matter has rightly come to conclusion and rejected the writ petition. No infirmity or illegality can be found with the order. As such, this writ appeal is dismissed.
Sd/-
CHIEF JUSTICE Sd/-
JUDGE SBN