Rajasthan High Court - Jodhpur
Ashish Kumar & Ors vs State Bank Of India & Ors on 31 May, 2018
Author: Pushpendra Singh Bhati
Bench: Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 4304 / 2018
1. Ashish Kumar S/o. Shri Megha Ram Singh, Aged About 41
Years, R/o Kheri, Tehsil Rajgarh Dist- Churu (Raj
2. Sandeep Kumar S/o. Shri Naresh Kumar, Aged About 20 Years,
R/o Village Ghanau, Tehsil Rajgarh, Dist- Churu (Raj.)
3. Narpat Singh S/o Shri Surendra Singh, Aged About 28 Years,
R/o Village Jori, Dist- Churu (Raj.)
4. Tarachand S/o Shri Chimna Ram, Aged About 48 Years, R/o
Village Raiya Tunda, Tehsil Taranagar, Dist- Churu (Raj.)
5. Randheer Singh Ruyal S/o Shri Tiku Ram Ruyal, Aged About 43
Years, R/o Village Khansoli, Tehsil Churu, Dist- Churu (Raj.)
6. Rajendra Tak S/o Shri Shankar Lal, Aged About 28 Years, R/o
Village Sidhmukh, Tehsil Rajgarh, Dist- Churu (Raj.)
7. Ratan Singh S/o Shri Govind Singh, Aged About 47 Years, R/o
Village Karanpura, Tehsil Churu, Dist- Churu (Raj.)
8. Jitendra Joshi S/o Shri Murari Lal Joshi, Aged About 22 Years,
R/o Village Sidhmukh, Tehsil Rajgarh, Dist- Churu (Raj.)
9. Suresh Kumar Poonia S/o Shri Surat Singh Poonia, Aged About
27 Years, R/o Village Gwalisar, Tehsil Rajgarh, Dist- Churu (Raj.)
10. Kailash Chand S/o Shri Mahesh Kumar, Aged About 28 Years,
R/o Village Norangsar, Tehsil Sujangarh, Dist Churu (Raj.)
11. Laxman Singh S/o Shri Ugam Singh, Aged About 36 Years, R/o
Village Kanjan, Tehsil Rajgarh, Dist- Churu (Raj.)
12. Shri Kishan S/o Raja Ram, R/o Village Post Chandrakh Tehsil
Baori, District Jodhpur.
13. Kanwara Ram Choudhary S/o Jeta Ram, B/c Jat, R/o Basni
Lachha Manaklav, District Jodhpur.
14. Pemp Singh S/o Ganpat Singh, B/c Rajput, R/o Raimalwara
Tehsil Osian, District Jodhpur.
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15. Sarvan Puri S/o Manak Puri, B/c Goswami, R/o Barnow,
Balesar District Jodhpur.
16. Mahendra Singh S/o Narayan Singh, B/c Rajput, R/o Kalyan
Singh Ki Seed, Tehsil Bap, District Jodhpur.
----Petitioners
Versus
1. The State Bank of India Through Its Chairman, Corporate
Centre, Navy Mumbai, 400614.
2. The Chief General Manager, (FI & MF) Corporate Centre, Navy
Mumbai, 400614
3. The General Manager, (F.I.) State Bank of India, C- Scheme,
Tilak Marg, Jaipur.
4. The Deputy General Manager, (Outreach) Administrative and
Business Unit, C- Scheme, Tilak Marg, Jaipur.
5. The Deputy General Manager, (B&O) Administrative and
Business Office, C- Scheme, Tilak Marg, Jaipur.
6. The Assistant General Manager, State Bank of India, A-3,
Shastri Nagar, Jodhpur Zone, Jodhpur.
----Respondents
Connected With
S.B. Civil Writ Petition No. 5198 / 2018
Sanwala Ram S/o Kheema Ram, Aged About 41 Years, B/c
Meghwal, R/o 94, Bavatara Sarak, Chourav, Teh. Sayala, District
Jalore (Raj.).
----Petitioner
Versus
1. The State Bank of India Through Its Chairman, Corporate
Centre, Navy Mumbai, 400614.
2. The Chief General Manager, (FI & MF) Corporate Centre, Navy
Mumbai, 400614.
3. The General Manager, (F.I.) State Bank of India, C- Scheme,
Tilak Marg, Jaipur.
4. The Deputy General Manager, (FI & GS Deptt.) Administrative
and Business Unit, C- Scheme, Tilak Marg, Jaipur.
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5. The Deputy General Manager, (B&O) Administrative and
Business Office, C- Scheme, Tilak Marg, Jaipur.
6. Chief/ Branch Manager, SBI Bagra, Tehsil Jalore, District Jalore.
7. The Regional Manager, Regional Commercial Office-III,
Administration Office, A-23, Shastri Nagar, Jodhpur Zone,
Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 5746 / 2018
Virendra Parihar S/o Shri Baga Ram, Aged About 22 Years, B/c
Meghwal, R/o Village Narnawas, Post Office Bagra, Tehsil & District
Jalore (Raj.).
----Petitioner
Versus
1. The State Bank of India Through Its Chairman, Corporate
Centre, Navy Mumbai, 400614.
2. The Chief General Manager, (FI & MF) Corporate Centre, Navy
Mumbai, 400614
3. The General Manager, (F.I.) State Bank of India, C- Scheme,
Tilak Marg, Jaipur.
4. The Deputy General Manager, (FI & GS Deptt.) Administrative
and Business Unit, C- Scheme, Tilak Marg, Jaipur.
5. The Deputy General Manager, (B&O) Administrative and
Business Office, C- Scheme, Tilak Marg, Jaipur.
6. Chief/Branch Manager, SBI Bagra, Tehsil Jalore, District Jalore.
7. The Regional Manager, Regional Commercial Office-III,
Administration Office, A-23, Shastri Nagar, Jodhpur Zone,
Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 6258 / 2018
1. Dileep Kumar S/o Shri Dharma Ram, Aged About 33 Years, B/c
Meghwal, R/o Civil Lines, Merta City, Tehsil Merta City, District
Nagaur.
2. Shishpal Sharma S/o Shri Ram Rakhji Sharma, Aged About 45
Years, B/c Brahmin, R/o VPO Moter, Tehsil Ravatsar, District
Hanumangarh (Raj.).
3. Bhagwana Ram S/o Shri Jalu Ramji, B/c Jat, R/o VPO Purasar,
Tehsil Ravatsar, District Hanumangarh (Raj.).
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4. Pirtha Malinda S/o Mani Ramji, Aged About 46 Years, B/c
Meghwal, R/o Chanudedi Chhoti, Ravatsar, Jhaidsar, District
Hanumangarh.
5. Mukesh Kumar S/o Balbir Singh, Aged About 35 Years, B/c Jat,
R/o Ward No. 13, Near Arya Samaj Vidhyalaya, No. 5, Chanibari,
District Hanumangarh.
6. Rohtash S/o Ramkumarji, Aged About 35 Years, B/c Jat, R/o
Village Gadhi Chhani, 8-JSL, District Hanumangarh.
7. Prahalad Kumar S/o Liladharji, Aged About 32 Years, B/c
Swami, R/o Ward No. 5, Godarawas, Fatehgarh, 31 SSW,
Fatehgarh, District Hanumangarh.
8. Kuldeep Kumar S/o Mahaveer Prasad, Aged About 28 Years, B/c
Jat, R/o Ward No. 4, Godarawas, P.O. Fatehgarh- 31, SSW
(Fatehgarh), District Hanumangarh.
9. Narsa Ram S/o Khima Ram, Aged About 23 Years, B/c Sargara,
R/o Mayla Was Meda Uparla, District Jalore.
10. Jitendra Kumar Gupa S/o Shri Shankar Lal Gupta, Aged About
26 Years, B/c Gupta, R/o C/o: Mukesh Kumar Guar, Village
Jakhara, Girda, District Barmer (Raj.).
11. Bhavesh Kumawat S/o Shri Parasmal, Aged About 23 Years,
B/c Kumawat, R/o 215, Main Bus Stand, Guda Kalan, District Pali.
----Petitioners
Versus
1. The State Bank of India Through Its Chairman, Corporate
Centre, Navy Mumbai, 400614.
2. The Chief General Manager, (FI & MF) Corporate Centre, Navy
Mumbai, 400614
3. The General Manager, (F.I.) State Bank of India, C- Scheme,
Tilak Marg, Jaipur.
4. The Deputy General Manager, (Outreach) Administrative and
Business Unit, C- Scheme, Tilak Marg, Jaipur.
5. The Deputy General Manager, (B&O) Administrative and
Business Office, C- Scheme, Tilak Marg, Jaipur.
6. The Assistant General Manager, State Bank of India, A-3,
Shastri Nagar, Jodhpur Zone, Jodhpur.
----Respondents
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S.B. Civil Writ Petition No. 5846 / 2018
Azad Khan S/o Nathu Khan, Aged About 28 Years, B/c Muslim, R/o
V/p Ramaniya, Teh. Siwana, Distt. Barmer (Raj.)
----Petitioner
Versus
1. The State Bank of India Through Its Chairman, Corporate
Centre, Navy Mumbai, 400614.
2. The Chief General Manager, (FI & MF) Corporate Centre, Navy
Mumbai, 400614
3. The General Manager, (F.I.) State Bank of India, C- Scheme,
Tilak Marg, Jaipur.
4. The Deputy General Manager, (FI & GS Deptt.) Administrative
and Business Unit, C- Scheme, Tilak Marg, Jaipur.
5. The Deputy General Manager, (B&O) Administrative and
Business Office, C- Scheme, Tilak Marg, Jaipur.
6. Chief/Branch Manager, SBI Bagra, Tehsil Jalore, District Jalore.
7. The Regional Manager, Regional Commercial Office-III,
Administration Office, A-23, Shastri Nagar, Jodhpur Zone,
Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 6140 / 2018
Govind Ram Parmar S/o Pratapji, Aged About 48 Years, By Caste
Prajapat, R/o 382, Kumaharo Ki Seri, Doodsi, Teh. & Distt. Jalore
(Raj.).
----Petitioner
Versus
1. The State Bank of India Through Its Chairman, Corporate
Centre, Navy Mumbai, 400614.
2. The Chief General Manager, (FI & MF) Corporate Centre, Navy
Mumbai, 400614
3. The General Manager, (F.I.) State Bank of India, C- Scheme,
Tilak Marg, Jaipur.
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4. The Deputy General Manager, (FI & GS Deptt.) Administrative
and Business Unit, C- Scheme, Tilak Marg, Jaipur.
5. The Deputy General Manager, (B&O) Administrative and
Business Office, C- Scheme, Tilak Marg, Jaipur.
6. Chief/Branch Manager, SBI Bagra, Tehsil Jalore, District Jalore.
7. The Regional Manager, Regional Commercial Office-III,
Administration Office, A-23, Shastri Nagar, Jodhpur Zone,
Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 6363 / 2018
Ramesh Kumar S/o Bhala Ram, Aged About 27 Years, B/c
Meghwal, R/o V/p Karola, Teh. Sanchore, Distt. Jalore (Raj.).
----Petitioner
Versus
1. The State Bank of India Through Its Chairman, Corporate
Centre, Navy Mumbai, 400614.
2. The Chief General Manager, (FI & MF) Corporate Centre, Navy
Mumbai, 400614.
3. The General Manager, (F.I.) State Bank of India, C- Scheme,
Tilak Marg, Jaipur.
4. The Deputy General Manager, (FI & GS Deptt.) Administrative
and Business Unit, C- Scheme, Tilak Marg, Jaipur.
5. The Deputy General Manager, (B&O) Administrative and
Business Office, C- Scheme, Tilak Marg, Jaipur.
6. Chief/ Branch Manager, SBI Bagra, Tehsil Jalore, District Jalore.
7. The Regional Manager, Regional Commercial Office-III,
Administration Office, A-23, Shastri Nagar, Jodhpur Zone,
Jodhpur.
----Respondents
S.B. Civil Writ Petition No. 6368 / 2018
Ramesh Kumar S/o Peepa Ram, Aged About 43 Years, By Caste
Meghwal, R/o Akoli, Via- Begra, Teh/Distt. Jalore. (Raj.).
----Petitioner
Versus
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1. The State Bank of India Through Its Chairman, Corporate
Centre, Navy Mumbai, 400614.
2. The Chief General Manager, (FI & MF) Corporate Centre, Navy
Mumbai, 400614
3. The General Manager, (F.I.) State Bank of India, C- Scheme,
Tilak Marg, Jaipur.
4. The Deputy General Manager, (FI & GS Deptt.) Administrative
and Business Unit, C- Scheme, Tilak Marg, Jaipur.
5. The Deputy General Manager, (B&O) Administrative and
Business Office, C- Scheme, Tilak Marg, Jaipur.
6. Chief/Branch Manager, SBI Bagra, Tehsil Jalore, District Jalore.
7. The Regional Manager, Regional Commercial Office-III,
Administration Office, A-23, Shastri Nagar, Jodhpur Zone,
Jodhpur.
----Respondents
_____________________________________________________
For Petitioner(s) : Mr.Rajesh Panwar with Mr.Sukesh Bhati and
Mr.Devendra Soni
For Respondent(s) : Mr.M.S.Singhvi, Senior Advocate assisted by
Dr.Sachin Acharya and Mr.Anupam G. Vyas
_____________________________________________________
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment
Reserved on 10/05/2018
Pronounced on 31/05/2018
1. Since the present indictment under Article 226 of the
Constitution of India, common in the instant batch of writ
petitions, is in essence, mounted against the common cause of
action, that has arisen to the present petitioners, therefore, the
present writ petitions have been heard analogously and the
present adjudication would answer the same.
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2. Considering the subject matter of assailment and the
analogy of the grounds thereof, dilation on the individual facts is
considered inessential, and therefore, the skeletal narration of the
factual background, necessary and germane for appreciating and
thrashing out the present lis, from the pleadings of leading case
being S.B.Civil Writ Petition No.4304/2018 and the relief clauses
thereof, would suffice.
3. These writ petitions under Article 226 of the
Constitution of India have been preferred claiming, in sum and
substance, the following reliefs:
"(a) The respondents may be directed to continue the
petitioners on the post of Business Correspondent
(BC) directly as are/were continuing for last many
years.
(b) The respondents may be directed not to terminate
the services of the petitioners so as to replace
contractual employees by other set of employees.
(c) The action of the respondents in corporatization of
individual business correspondents may kindly be
quashed and set aside.
(d) That the costs of the writ petition be also awarded
in favour of the petitioner.
(e) That any other appropriate writ or order or
direction which is favourable to the petitioner in the
facts and circumstances of the case may kindly be
granted to the petitioner."
4. As the pleaded case of the petitioners would reveal,
they are seeking continuation of their services as Business
Correspondents, while questioning the intervention of private
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contractor/placement agency/corporate companies, on the
strength of the following circumstances:
(i) Guidelines of the Reserve Bank of India (RBI) provides to
engage the Individual Business Correspondents through private
contractor/placement agency/corporate companies.
(ii) On an earlier occasion as well, the respondents initiated similar
kind of action by issuing circular, whereupon this Hon'ble Court
passed the interim order directing continuance of the services of
the petitioners, and thereupon, the respondents had withdrawn
the said circular.
(iii) Engagement through private contractor/placement
agency/corporate companies results into taking away of the
financial benefits arising out of the petitioners' services.
(iv) The petitioners are rendering their services for last many
years without any complaint and to the utmost satisfaction of the
respondents authorities as Individual Business Correspondents
(v) Discontinuance of the engagement/services of the directly
engaged/serving individuals by private contractor/placement
agency/corporate companies has also been held as bad by this
Hon'ble Court.
5. The factors governing the respondents are the
Guidelines issued by the RBI from time to time, as per the
directions of the Government of India, with the sole object to
facilitate rendering of the banking services, amongst the public at
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large. The RBI has also issued the Guidelines pertaining to
engagement of Business Correspondents/Business Facilitator for
increasing the outreach of the Bank and to achieve greater
financial inclusions.
6. In pursuance of the RBI Guidelines, the erstwhile State
Bank of Bikaner & Jaipur issued an advertisement so as to engage
the Business Correspondent/Business Facilitator (BC) and
prescribed the procedure for selection thereof. The Business
Correspondents are also known by the name of Service Provider
and Bank Mitra.
7. In pursuance of the aforementioned advertisement, the
petitioners submitted their application forms, and after scrutinizing
such applications, the respondents conducted the process of
interview and document verification, which was followed by
selection of the petitioners through the selection committee,
whereafter, their police verification was also conducted.
Thereafter, the respondents issued appointment letters to the
petitioners and imparted training to them, so as to enable them to
perform their work as Business Correspondents in an efficient and
effective manner.
8. Thereafter, a service agreement (Annexure-4 of the
writ petition) was executed between the respondents and the
present petitioners, setting out certain details pertaining to the
terms and conditions, security deposits etc. On the basis of the
said service agreement, the petitioners are still continuing as
Business Correspondents with the respondents.
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9. In lieu of receiving the security deposits from the
petitioners, the respondents provided POS Machine to the
petitioners to carry out the banking business in the remote areas,
where the banking facilities were not available. The petitioners
were also issued the identity and operator cards. The respondents,
in this series, have also kept with them an FDR of Rs.50,000/- as
a security deposit made by the petitioners.
10. The working hours of such Business Correspondents
were from 08:00 a.m. to 02:00 p.m., and they were allowed to
render their services till 08:00 p.m. The respondents used to give
Rs.3,000/- as salary, coupled with the commission, in lieu of
petitioners providing maximum facilities to the villagers, with a
view to increase the banking business of the Bank.
11. In this manner, the petitioners have received the higher
amount of the fixed salary and the commission. However, the
salary of the Business Correspondents has been enhanced by the
respondents to Rs.5,000/-, and presently, the petitioners are
getting a sum of Rs.5,000/- as minimum salary and the exceeded
commission. The remuneration payable to the petitioners was
increased as per the order of the Finance Department.
12. The petitioners were also required to get the several
works done on behalf of the respondents, like opening the
accounts, financial transaction, getting FDRs, RDs payment under
the Atal Pension Yojana, recovery of loan amount, payment in
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regard to the government project, opening of Jan Dhan Accounts,
etc.
13. In November, 2014, the online banking system has
been introduced by the Banks, pursuant whereto, the petitioners
were directed to perform their work in accordance with the said
banking system. For that purpose, the petitioners purchased the
computer machines and other requisite accessories for performing
the online process of banking.
14. With a view to achieve efficiency in performance of the
banking business, the then State Bank of Bikaner & Jaipur through
Rural Self Employment Training Institute, conducted the training
programme for the Business Correspondents in the year 2015.
Apart therefrom, the Indian Institute of Banking and Finance
conducted the online examination of the Business Correspondents,
in pursuance whereof, the petitioners participated in the process of
such examination and were declared successful therein.
15. Thereafter, following the merger of the then State Bank
of Bikaner & Jaipur in the State Bank of India on 01.04.2017, all
its employees, including the present petitioners were accordingly
merged and were also treated as the employees of the State Bank
of India. Pursuant to such merger, all the assets of the then State
Bank of Bikaner & Jaipur were also merged with the State Bank of
India. During such merger proceedings, the consent was taken
from all the employees of the then State Bank of Bikaner & Jaipur
to serve in the State Bank of India on the same terms and
conditions pertaining to fee, remuneration structure etc.
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16. The Business Correspondents i.e. the present
petitioners were verbally informed by their Zonal Manager and
Branch Manager requiring them to attend the meeting, scheduled
to be held on 20.05.2017. Upon having attended the said meeting,
it came to the knowledge of the petitioners that the respondents
were planning to discontinue the petitioners directly, while
advising them to serve through the private contractor/placement
agency/corporate company. The said information was found to be
authentic by the petitioners, upon their being supplied the copy of
the communications dated 18.05.2017 and 19.05.2017, when they
received the messages from various private contractor/placement
agency/corporate companies regarding their joining, pursuant to
their re-engagement as Business Correspondents.
17. The aforementioned communications would reveal that
the services of the petitioners were to be continued through the
various private companies/corporate companies. The respondents
directed and instructed the authorities concerned to
disengage/terminate the services of the petitioners or engage
them through various private contractor/placement
agency/corporate companies. In fact, the petitioners, who have
acquired vast experience and have invested their valuable time
and money, are willing to perform their work directly with the
respondents, without there being any intervention of the private
contractor/placement agency/corporate companies.
18. Learned counsel for the petitioners submitted that the
respondents have taken a decision in regard to corporatization of
Individual Business Correspondents, and for that purpose, the
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respondents have circulated the communication dated 16.02.2018
to various administrative offices. The said communication has
come to the knowledge of the petitioners recently, upon the
respondents authorities having informed the petitioners about
their re-engagement through the private contractor/placement
agency/corporate companies.
19. Learned counsel for the petitioners also submitted that
the petitioners only wish to continue their engagement directly
with the respondents, more particularly, when there is no plausible
reason for discontinuing the services of the Individual Business
Correspondents, who are having vast knowledge and experience
and are also well versed and equipped with the machinery etc.
20. Learned counsel for the petitioners further submitted
that the re-engagement of the petitioners with the private
companies/corporate companies would certainly result into
reduction in the financial benefits, to which the petitioners are
entitled, as they will take out their commission from the amount,
which is payable to the petitioners.
21. Learned counsel for the petitioners also submitted that
the petitioners had made huge investments, not only in terms of
money, but also their precious time in the Scheme so introduced
by the RBI, and apart therefrom, the petitioners have much hope
from the welfare scheme introduced by the RBI. Thus, the
aforesaid action of the respondents is nothing, but an attempt to
make such exercise of the petitioners to go in vain.
22. Learned counsel for the petitioners further submitted
that the RBI Notification/Guidelines stipulated that the individual
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can be appointed and continued as Business Correspondent, and
thus, the respondents were not at all empowered to
disengage/terminate the well experienced and trained Business
Correspondents, like the present petitioners, who have been
rendering their services for last many years with dedication and
loyalty to the utmost satisfaction of the respondents, apart from
investing their hard-earned money and valuable time, only with
the legitimate expectation that their services shall be continued
directly with the respondents.
23. Learned counsel for the petitioners has made the
submission that the Hon'ble Apex Court, in plethora of judgments,
has categorically held that one set of contractual employees
cannot be replaced by another set of contractual employees, and
upon such an inaction having been taken, the Hon'ble Courts, time
and again, have protected the rights of such contractual
employees. Thus, in the present case also, the present petitioners
are also entitled for protection of their legitimate rights, which are
sought to be infringed by the respondents, by re-engaging the
petitioners through placement agencies, to work under the
private/corporate companies.
24. Learned counsel for the petitioners has tried to
strengthen the aforesaid submission on the ground that inspite of
there being no complaint against the petitioners pertaining to
performance of their duties, an attempt is being made by the
respondents to engage the petitioners through the placement
agencies, instead of continuing the petitioners' services directly
with the respondents.
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25. Learned counsel for the petitioners has thus submitted
that the respondents, without any cogent reason, are going ahead
with the exercise of discontinuing the services of the petitioners,
directly with the respondents, as Business Correspondents by re-
engaging them through the placement agencies. Moreover, the
said exercise of the respondents would not serve any purpose,
rather would be detrimental to the rights of the petitioners, which
would ultimately result into lack of zeal and enthusiasm amongst
the contractual employees, like the present petitioners.
26. Learned counsel for the petitioners further submitted
that the policy of the respondents for corporatization is per se
wrong and illegal, for the simple reason that such decision would
certainly cause discontinuance of the services of Individual
Business Correspondents, while retaining the corporate entities,
only keeping in view the convenience of the Bank. Such a decision
of the respondents would certainly frustrate the very purpose of
the Scheme and the RBI Guidelines, which were issued in regard
to extend/outreach the banking facility to the rural folk, while
giving attention on individual/family basis, which could not be
catered in an appropriate manner by the corporate entities.
27. Learned counsel for the petitioners also submitted that
the goals set out by the respondents themselves at the time of
engaging the Business Correspondents, would not be achieved due
to the corporatization sought to be done by them, while dispensing
with the services of the petitioners. Thus, the said policy of the
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respondents is violative of the Guidelines of the RBI itself, which
were issued from time to time.
28. The next submission raised by learned counsel for the
petitioners is that the RBI has taken number of initiatives for
increasing the banking outreach and ensuring greater financial
inclusions, and the significant step, in that direction, was the
Guidelines issued by the RBI in January, 2006 for engagement of
Business Correspondents by Banks for providing banking and
financial services; the objective thereof was to aid the process of
financial inclusion and consequential extension of banking to the
remotest areas of the country, so as to make them bankable. In
this regard, the RBI had issued the first notification on 25.01.2006
for all commercial banks requiring the Banks to ensure that the
scheme so formulated is implemented in its strict sense, keeping
in view the objectives and parameters laid down therein and; all
agreements/contracts with the customers shall clearly specify that
the Bank is responsible to the customers for the acts of omission
and commission of the Business Correspondent/Business
Facilitator.
29. As per learned counsel for the petitioners, the RBI
issued notifications dated 24.04.2008, 30.11.2009 and
26.04.2010 in respect of all commercial banks, whereby certain
selected individual entities were permitted to be engaged as
Business Correspondents. In yet another notification dated
27.08.2008, in point No.3 thereof, it has been clearly mentioned
that where the individuals, under the permitted categories, have
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been appointed as Business Correspondents, they cannot, in turn,
appoint sub-agents.
30. The RBI vide the notification dated 26.04.2010, in point
No.3 thereof, has clearly stipulated that on a review and with a
view to provide more flexibility to Banks, it has been decided to
permit the banks to engage any individual, including those
operating Common Service Centres (CSCs) as Business
Correspondents, subject to Bank's comfort level and their carrying
out suitable due diligence as also instituting additional safeguards,
as may be considered appropriate to minimize the agency risks.
31. Learned counsel for the petitioners further submitted
that a Master Circular dated 01.07.2014 also came to be issued by
the RBI for all commercial banks, and the relevant paras thereof
speak of Classification and the statutory guidelines issued by the
RBI; point (i) thereof speaks of Guidelines for engaging Business
Correspondents, wherein clause (A) is in respect of eligibility
individuals/entities, and clause (C) is in regard to procedure for
engaging the Business Correspondents.
32. Learned counsel for the petitioners has thus made out a
case that the concept of the Business Correspondents was brought
about only with the aim of providing banking service over the
areas, where the Bank could not reach, and for that purpose, the
Individual Business Correspondents were engaged by the banks so
as to target the rural folk, and subsequently, the companies were
permitted, which implies that two different cadres have been made
by the RBI for the purpose of Business Correspondents.
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33. Lastly, learned counsel for the petitioners submitted
that since the inception of the Business Correspondents, the RBI
has always been very specific and has stipulated, in its
notifications, that the risk and liability would only be borne by the
Bank and the Business Correspondents are agents/employees of
the Bank, which can be inferred on the basis of the duties
enshrined, nature of the work, fees/commissions paid, procedure
for engagement i.e. via contract and conditions mentioned in the
advertisement for appointment of the Business Correspondents.
34. In support of his submissions, learned counsel for the
petitioners has relied upon the precedent law laid down by the
Hon'ble Apex Court in GRIDCO Limited & Anr. Vs. Sri
Sadananda Doloi & Ors. in Civil Appeal No. 11303 of 2011
(Arising out of SLP (C) No. 10164 of 2008) decided on
16.12.2011, relevant paras of which read as under:-
"26. A conspectus of the pronouncements of this Court
and the development of law over the past few decades
thus show that there has been a notable shift from the
stated legal position settled in earlier decisions, that
termination of a contractual employment in
accordance with the terms of the contract was
permissible and the employee could claim no
protection against such termination even when one of
the contracting parties happened to be the State.
Remedy for a breach of a contractual condition was
also by way of civil action for damages/compensation.
With the development of law relating to judicial review
of administrative actions, a writ Court can now
examine the validity of a termination order passed by
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public authority. It is no longer open to the authority
passing the order to argue that its action being in the
realm of contract is not open to judicial review. A writ
Court is entitled to judicially review the action and
determine whether there was any illegality, perversity,
unreasonableness, unfairness or irrationality that
would vitiate the action, no matter the action is in the
realm of contract. Having said that we must add that
judicial review cannot extend to the Court acting as an
appellate authority sitting in judgment over the
decision. The Court cannot sit in the arm chair of the
Administrator to decide whether a more reasonable
decision or course of action could have been taken in
the circumstances. So long as the action taken by the
authority is not shown to be vitiated by the infirmities
referred to above and so long as the action is not
demonstrably in outrageous defiance of logic, the writ
Court would do well to respect the decision under
challenge.
27. Applying the above principles to the case at hand,
we have no hesitation in saying that there is no
material to show that there is any unreasonableness,
unfairness, perversity or irrationality in the action
taken by the Corporation. The Regulations governing
the service conditions of the employees of the
Corporation, make it clear that officers in the category
above E-9 had to be appointed only on contractual
basis.
28. It is also evident that the renewal of the contract
of employment depended upon the perception of the
management as to the usefulness of the Respondent
and the need for an incumbent in the position held by
him. Both these aspects rested entirely in the
discretion of the Corporation. The Respondent was in
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the service of another employer before he chose to
accept a contractual employment offered to him by the
Corporation which was limited in tenure and
terminable by three months' notice on either side. In
that view, therefore, there was no element of any
unfair treatment or unequal bargaining power between
the Appellant and the Respondent to call for an over-
sympathetic or protective approach towards the latter.
We need to remind ourselves that in the modern
commercial world, executives are engaged on account
of their expertise in a particular field and those who
are so employed are free to leave or be asked to leave
by the employer. Contractual appointments work only
if the same are mutually beneficial to both the
contracting parties and not otherwise."
35. Learned counsel for the petitioners has also placed
reliance on the precedent law laid down by the Hon'ble Apex Court
in Hussainbhai, Calicut Vs. Alath Factory Thozhilali Union,
Kozhikode & Ors., reported in (1978) 4 SCC 257, relevant
para of which reads as under:
"5. The true test may, with brevity, be indicated once
again. Where a worker or group of workers labours to
produce goods or services and these goods or services
are for the business of another, that other is, in fact,
the employer. He has economic control over the
workers' subsistence, skill, and continued employment.
If he, for any reason, chokes off, the worker is,
virtually, laid off. The presence of intermediate
contractors with whom alone the workers have
immediate or direct relationship ex contractu is of no
consequence when, on lifting the veil or looking at the
conspectus of factors governing employment, we
discern the naked truth, though Sniped in different
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[CW-4304/2018]
perfect paper arrangement, that the real employer is
the Management, not the immediate contractor.
Myriad devices, half hidden in fold after fold of legal
form depending on the degree of concealment needed,
the type of industry, the local conditions and the like,
may be resorted to when labour legislation casts
welfare obligations on the real employer, based on
Articles 38, 39, 42, 43 and 43A of the Constitution.
The court must be astute to avoid mischief and
achieve the purpose of the law and not be misled by
the maya of legal appearances."
36. Reliance has also been placed by learned counsel for
the petitioners on the precedent law laid down by the Hon'ble
Apex Court in Balmer Lawrie & Co. Ltd. Vs. Partha Sarathi
Sen Roy, reported in (2013) 8 SCC 345, relevant para of which
reads as under:-
"30.Where the actions of an employer bear public
character and contain an element of public interest,
as regards the offers made by him, including the
terms and conditions mentioned in an appropriate
table, which invite the public to enter into contract,
such a matter does not relegate to a pure and simple
private law dispute, without the insignia of any public
element whatsoever. Where an unfair and untenable,
or an irrational clause in a contract, is also unjust,
the same is amenable to judicial review. The
Constitution provides for achieving social and
economic justice. Article 14 of the Constitution
guarantees to all persons equality before the law and
equal protection of the law. Thus, it is necessary to
strike down an unfair and unreasonable contract, or
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an unfair or unreasonable clause in a contract, that
has been entered into by parties who do not enjoy
equal bargaining power, and are hence hit by Section
23 of the Contract Act, and where such a condition or
provision becomes unconscionable, unfair,
unreasonable and further, is against public policy.
Where inequality of bargaining power is the result of
great disparity between the economic strengths of
the contracting parties, the aforesaid principle would
automatically apply for the reason that, freedom of
contract must be founded on the basis of equality of
bargaining power between such contracting parties,
and even though ad idem is assumed, applicability of
standard form of contract is the rule. Consent or
consensus ad idem as regards the weaker party may
therefore, be entirely absent. Thus, the existence of
equal bargaining power between parties becomes
largely an illusion. The State itself, or a State
instrumentality cannot impose unconstitutional
conditions in statutory rules/regulations vis-à-vis its
employees in order to terminate the services of its
permanent employees in accordance with such terms
and conditions. (Vide Central Inland Water Transport
Corpn. Ltd. v. Brojo Nath Ganguly [Central Inland
Water Transport Corpn. Ltd. v. Brojo Nath Ganguly,
(1986) 3 SCC 156 : 1986 SCC (L&S) 429 : (1986) 1
ATC 103 : AIR 1986 SC 1571] , DTC v. Mazdoor
Congress [1991 Supp (1) SCC 600 : 1991 SCC (L&S)
1213 : AIR 1991 SC 101] , LIC [LIC v. Consumer
Education and Research Centre, (1995) 5 SCC 482 :
AIR 1995 SC 1811] , K.C. Sharma v. Delhi Stock
Exchange [(2005) 4 SCC 4 : 2005 SCC (L&S) 496 :
AIR 2005 SC 2884] and Punjab National Bank v.
Astamija Dash [(2008) 14 SCC 370 : (2009) 1 SCC
(L&S) 673 : AIR 2008 SC 3182] .)"
(24 of 75)
[CW-4304/2018]
37. Reliance has further been placed by learned counsel for
the petitioners on the judgment rendered by this Hon'ble Court in
Mahendra Kumar Vs. Union of India & Ors. (S.B.Civil Writ
Petition No.9291/2017 decided on 12.04.2018, relevant
portion of which reads as under:-
"7. After hearing learned counsel for the parties and
perusing record of case, this Court finds that the
petitioners, who are rendering contractual service as
Teacher/Warden at Government Residential School
(Boys) under the Sarva Shiksha Abhiyan since
2012/2015. This Court is of the opinion that such
contractual service under Sarva Shiksha Abhiyan can
be terminated only in accordance with the directions
given by Hon'ble Division Bench of this Court in State
of Rajasthan & Ors. Vs. Kusum Devi & Ors. (supra).
Apparently, the precedent law does not permit
contractual appointments to be terminated on the
ground of deputationist until the respondents
themselves have sufficient number of persons on that
posts working for themselves. Counsel for the
petitioner has clearly averred in petition that more
than 50,000 posts of Teachers are still lying vacant
with the State Government. It is also noted by the
Court that Teacher is a cadre where the respondents
keep on making regular recruitment but there is
always a shortage of Teachers in the State.
8. In light of the aforesaid observation, the
respondents are directed to continue petitioners on
their contractual appointment on the same terms as
they were continuing, however, they can be
terminated by the respondents only if :-
(1) Their services are not proper;
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(2) The Scheme/Project has come to an end; or
(3) They are required to be replaced by regularly
selected employees and also deputationist if the
respondents fill 90% posts of Teachers at a
particular time."
38. Learned counsel for the petitioners has relied upon the
judgment rendered by the Hon'ble Allahabad High Court in Prabal
Kumar Kulshreshtha and 58 Others Vs. Bank of India and 3
Others (Writ-A No.18688/2016) decided on 09.05.2016,
which reads as under:-
"Heard Sri Ashok Khare, learned senior counsel,
assisted by Sri Siddharth Khare, learned counsel for the
petitioners and Sri R.V. Pandey, learned counsel for the
respondents.
This petition has been filed by the petitioners, who
claimed to have been engaged as Business
Facilitator/Business Correspondent since 2011. By an order
passed on 16.3.2016, as well as consequential order passed
on 18.3.2016, contained in annexure-13 to the writ petition,
such engagement of petitioners has been discontinued and
contract of engagement has been terminated. The order
records that petitioners' engagement was on contractual
basis, and as such, by virtue of clause 10.4 of the
agreement, they are being disengaged.
While entertaining the writ petition following orders
were passed on 26.4.2016:-
"Submission is that persons similarly placed, as
petitioners, have been engaged in the entire country, but it
is only in Agra Region that they have been disengaged
without considering their individual performance.
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Learned counsel appearing for the respondent bank
submits that similar decisions have been taken throughout.
He prays for and is granted three days' time to obtain
specific instructions in this regard. Put up as fresh on
2.5.2016."
Learned counsel appearing for the respondent bank has
produced the instructions received from the Agra Branch of
the bank. The instructions issued under the signatures of Sri
Dinesh Kumar, Senior Manager, reads as under:-
"In accordance to the guidelines issued by DFS/GOI all
the BC's/BF's working the bank must adopt the latest model
for financial inclusion and who fails to do so cannot be
continued as BC's/BF's. On the bases off above our Zone
terminated the services of the BC's/BF's working on
contractual bases and fail to adopt the latest financial
inclusion model are terminated and those who migrated to
the latest model are retained in Bank."
Although, according to respondents, the order of
termination has been passed as the petitioners have failed to
adopt latest financial model, but it is not disputed by the
respondents that working of petitioners has not been
individually examined with reference to the guidelines
adopted, before proceeding to terminate contract of
engagement. A subsequent communication dated 3.5.2016
produced by the counsel for the respondent bank reads as
under:-
"In this connection, we advise that these BC/BF were
not doing the work of financial inclusion, a initiative of
Government of India. These BC have worked in the branch's
premises while their primary responsibility is to work in the
filed and provide doorstep transactional banking to the
customers through ICT based devices (either HHDs or
KIOSKs), a latest Financial Inclusion Model in terms of Bank
Circular No.106/166 dated 18.01.2013 (Enclosed). But they
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failed i.e. they have not purchased a single HHDs or KIOSKs
machine after spending such a long time (since 18.01.2013).
BC Model is totally outsourced model. If any BC does not
adopt latest model/bank's guidelines i.e. ICT based devices,
whole purpose of financial inclusion will be defeated. Without
adopting ICT based devices (HHDs or KIOSKs), main aim to
provide doorstep transactional banking to the customers is
not fulfil. In view of that, we have taken hard step and
phased out them finally in accordance BC No.106/166 dated
18.01.2013.
We have terminated them as per extant guidelines of
the bank/RBI with due procedure."
The guidelines in this regard are stated to have been
issued on 18.1.2013.
From the materials which have been brought on record
before this Court, it is apparent that the respondent bank
has not examined functioning of the petitioners, individually,
with reference to the work performed in the context of the
provisions contained in the guidelines. No reasons have been
assigned, and therefore, the conclusion drawn in the
instructions that petitioners' working was not in accordance
with the guidelines, is not liable to be sustained. Petitioners'
contention that only in Agra Region such order has been
passed, has also not been taken into consideration.
Learned counsel for the respondent bank faced with the
aforesaid situation submits that instead of keeping the
matter pending, it would be appropriate to dispose off the
writ petition with liberty to respondents to act in accordance
with law.
In the absence of any reasons and findings returned in
the order, holding petitioners' working not to be in
accordance with the guidelines framed, the action of
respondents, terminating their engagement, cannot be
sustained. Consequently, the writ petition is allowed. The
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order dated 16.3.2016 and 18.3.2016 are set aside. It shall,
however, be open for the respondent bank to proceed,
afresh, in accordance with law."
39. Assiduously controverting the aforesaid submissions
made on behalf of the petitioners, Mr.M.S.Singhvi, learned Senior
Counsel assisted by Dr.Sachin Acharya for the respondents has
raised the preliminary objection regarding maintainability of the
present writ petitions, on the ground that incorrect and false
averments have been made therein.
40. Learned Senior Counsel for the respondents has harped
upon the misstatement and concealment of materials facts on the
part of the petitioners, on the ground that the order dated
16.11.2017 passed in earlier set of litigation has been deliberately
concealed by the petitioners, inasmuch as the prayer clauses (a)
and (b) have been declined by the said order, yet the same
prayers have again been made by the petitioners. In support of
this submission, learned Senior Counsel has relied upon the
precedent law laid down by the Hon'ble Apex Court in Bhaskar
Laxman Jadhav & Ors. Vs. Karamveer Kakasaheb Wagh
Education Society & Ors., reported in (2013) 11 SCC 531,
relevant paras of which read as under:
"42. While dealing with the conduct of the parties, we
may also notice the submission of learned Counsel for
Respondent No. 1 to the effect that the Petitioners are
guilty of suppression of a material fact from this Court,
namely, the rejection on 2nd May 2003 of the first
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[CW-4304/2018]
application for extension of time filed by the trustees
and the finality attached to it. These facts have not
been clearly disclosed to this Court by the Petitioners.
It was submitted that in view of the suppression,
special leave to appeal should not be granted to the
Petitioners.
43. Learned Counsel for the Petitioners submitted that
no material facts have been withheld from this Court.
It was submitted that while the order dated 2nd May
2003 was undoubtedly not filed, its existence was not
material in view of subsequent developments that had
taken place. We cannot agree.
44. It is not for a litigant to decide what fact is
material for adjudicating a case and what is not
material. It is the obligation of a litigant to disclose all
the facts of a case and leave the decision making to
the Court. True, there is a mention of the order dated
2nd May 2003 in the order dated 24th July 2006
passed by the JCC, but that is not enough disclosure.
The Petitioners have not clearly disclosed the facts and
circumstances in which the order dated 2nd May 2003
was passed or that it has attained finality.
45. We may only refer to two cases on this subject. In
Hari Narain v. Badri Das AIR 1963 SC 1558 stress was
laid on litigants eschewing inaccurate, untrue or
misleading statements, otherwise leave granted to an
Appellant may be revoked. It was observed as follows:
"9.... It is of utmost importance that in
making material statements and setting
forth grounds in applications for special
leave, care must be taken not to make any
statements which are inaccurate, untrue or
misleading. In dealing with applications for
special leave, the Court naturally takes
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[CW-4304/2018]
statements of fact and grounds of fact
contained in the petitions at their face value
and it would be unfair to betray the
confidence of the Court by making
statements which are untrue and
misleading. That is why we have come to
the conclusion that in the present case,
special leave granted to the Appellant ought
to be revoked. Accordingly, special leave is
revoked and the appeal is dismissed. The
Appellant will pay the costs of the
Respondent."
46. More recently, in Ramjas Foundation v. Union of
India the case law on the subject was discussed. It
was held that if a litigant does not come to the Court
with clean hands, he is not entitled to be heard and
indeed, such a person is not entitled to any relief from
any judicial forum. It was said:
"21. The principle that a person who does
not come to the court with clean hands is
not entitled to be heard on the merits of his
grievance and, in any case, such person is
not entitled to any relief is applicable not
only to the petitions filed under Articles 32,
226 and 136 of the Constitution but also to
the cases instituted in others courts and
judicial forums. The object underlying the
principle is that every court is not only
entitled but is duty bound to protect itself
from unscrupulous litigants who do not
have any respect for truth and who try to
pollute the stream of justice by resorting to
falsehood or by making misstatement or by
suppressing facts which have a bearing on
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[CW-4304/2018]
adjudication of the issue(s) arising in the
case."
47. A mere reference to the order dated 2nd May
2003, en passant, in the order dated 24th July 2006
does not serve the requirement of disclosure. It is not
for the Court to look into every word of the pleadings,
documents and annexures to fish out a fact. It is for
the litigant to come up-front and clean with all
material facts and then, on the basis of the
submissions made by learned Counsel, leave it to the
Court to determine whether or not a particular fact is
relevant for arriving at a decision. Unfortunately, the
Petitioners have not done this and must suffer the
consequence thereof.
57. For the reasons mentioned above, we decline to
grant special leave to appeal to the Petitioners for
suppression of a material fact and direct the Charity
Commissioner to have a fresh look at the sale of the
Trust land, subject matter of this petition, in
accordance with the directions of the High Court.
However, we leave it open to the Charity
Commissioner to permit all the parties before it to
submit fresh offers for the Trust land and if deemed
necessary, a fresh public notice for sale of the Trust
land may be issued. On the basis of the bid given by
Respondent No. 1 as disclosed to us in Court, we make
it clear that the price for the sale of the Trust land
shall not be less than Rs. 3.87 crore."
41. The next submission of learned Senior Counsel for the
respondent is pertaining to availability of the alternative remedy,
on the ground that the agreement dated 15.12.2017 executed
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[CW-4304/2018]
between the State Bank of India and Shri Kishan (B.C.) contains
Clause 11 regarding Arbitration. The said Clause 11 reads as
under:-
"11. Arbitration:
11.1 Any and all disputes, controversies and conflicts
("Disputes") arising out of this Agreement or in
connection with this Agreement or the performance or
non-performance of the rights and obligations set
forth herein, or the breach, termination, invalidity or
interpretation thereof shall be referred to arbitration
in terms of the Arbitration and Conciliation Act,1996
(Arbitration Act) or any amendments thereof. Prior to
submitting the Disputes to arbitration the parties shall
make all endeavours to settle the dispute/s through
through mutual negotiation and discussions. In the
event that the said dispute/s are not settled within 30
days of the arising thereof as evidenced through the
first written communication from any party notifying
the other regarding the disputes, the same shall
finally be settled and determined by arbitration as
above.
11.2 The place of arbitration shall be at Jodhpur
(Place of Execution) and the language used in the
arbitral proceedings shall be English. Arbitration shall
be conducted by a mutually appointed sole arbitrator.
If the parties are unable to agree upon a sole
Arbitrator, each Party shall appoint one arbitrator and
the two arbitrators so appointed by the Parties shall
appoint the third arbitrator, who shall be the
Chairman of the Arbitral Tribunal.
11.3 The arbitral award shall be in writing and
subject to the provisions of the Arbitration and
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Conciliation Act, 1996 shall be enforceable in any
court of competent jurisdiction.
11.4 Pending the submission to arbitration and
thereafter, till the Arbitrator or the Arbitral Tribunal
renders the award or decision, the Parties shall,
except in the event of termination of this Agreement
or in the event of any interim order/award is granted
under the afore stated Act, continue to perform their
obligations under this Agreement."
42. Learned Senior Counsel for the respondents has also
raised the submission regarding disputed questions of fact and the
claim not determinable under Article 226 of the Constitution of
India. In support of this submission, learned Senior Counsel for
the respondents has placed reliance on the precedent law laid
down by the Hon'ble Apex Court in Steel Authority of India Ltd.
& Ors. Vs. National Union Waterfront Workers & Ors.,
reported in (2001) 7 SCC 1, relevant paras of which read as
under:-
"108. The next issue that remains to be dealt with:
B. Whether on a contractor engaging contract
labour in connection with the work entrusted to
him by a principal employer, the relationship of
master and servant between him (the principal
employer) and the contract labour emerges.
109. Mr. Shanti Bhushan alone has taken this extreme
stand that by virtue of engagement of contract labour
by the contractor in any work of or in connection with
the work of an establishment, the relationship of
master and servant is created between the principal
employer and the contract labour. We are afraid, we
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are unable to accept the contention of the learned
Counsel. A careful survey of the cases relied upon by
him shows that they do not support his proposition.
110. In The Maharashtra Sugar Mills's case (supra),
the question that fell for consideration of this Court
was whether the contract labour was covered by the
definition of 'employee' under the Bombay Industrial
Relations Act, 1946 and, therefore, should be treated
as employees of the appellant-sugar mills. There
contractors were engaged by the appellant for carrying
on certain operations in its establishment. The
contractors were to employ contract labour (workers)
for carrying out the work undertaken but they should
have the approval of the appellant, although it was the
obligation of the contractors to pay wages to the
workers. However, the contract labour engaged by the
contractors got the same amenities from the appellant
as were available to its muster roll workers. An
industrial dispute arose in respect of the payment of
wages to the contract labour engaged by the
contractors which, along with other disputes, was
referred to the Industrial Court by the Government.
The reference was contested, as being not
maintainable by the appellant on the plea that the
contractors' workers were not 'employees' within the
meaning of the said Act. The term 'employee' is
defined in the said Act to mean
"any person employed to do any skilled or
unskilled manual or clerical work for hire or
reward in any industry and includes a person
employed by a contractor to do any work for him
in execution of a contract with an employer
within the meaning of Sub-clause (e) of Clause
(14)".
(35 of 75)
[CW-4304/2018]
It was on the basis of the definition of the terms "the
employer" and "the employee" the contract labour
engaged by the contractors was held to be employees
of the appellant. The decision in that case cannot be
read as holding that when a contractor engages
contract labour in connection with the work of the
principal employer, the relationship of master and
servant is created between the principal employer and
the contract labour.
111. In Shivanandan Sharma's case (supra), the
respondent-Bank entrusted its cash department under
a contract to the treasures who appointed cashiers,
including the appellant - the head cashier. The
question before the three-Judge Bench of this Court
was: was the appellant an employee of the Bank ? On
the construction of the agreement entered into
between the Bank and the treasurers, it was held that
the treasurers were under the employment of the Bank
on a monthly basis for an indefinite terms as they
were under the complete control and direction of the
Bank through its manager or other functionaries and,
therefore, the appointees including the appellant
(nominees) of the treasures, were also the employees
of the Bank, this Court laid down.
"If a master employs a servant and authorizes
him to employ a number of persons to do a
particular job and to guarantee their fidelity and
efficiency for a cash consideration, the
employees thus appointed by the servant would
be equally with the employer, servants of the
master."
We do not think that the principle, quoted above,
supports the proposition canvassed by the learned
Counsel.
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112. The decision of the Constitution Bench of this
Court in Basti Sugar Mills' case (supra) was given in
the context of reference of an industrial dispute under
the Uttar Pradesh Industrial Disputes Act, 1947. The
appellant Sugar Mills entrusted the work of removal of
press mud to a contractor who engaged the
respondents therein (contract labour) in connection
with that work. The services of the respondents were
terminated by the contractor and they claimed that
they should be reinstated in the service of the
appellant. The Constitution Bench held.
"The words of the definition of workmen in
Section 2(z) to mean "any person (including an
apprentice) employed in any industry to do one
skilled or unskilled, manual, supervisory,
technical or clerical work for hire or reward,
whether the terms of employment be express or
implied" are by themselves sufficiently wide to
bring in persons doing work in an industry
whether the employment was by the
management or by the contractor or the
management. Unless however, the definition of
the word 'employer" included the management of
the industry even when the employment was by
the contractor the workmen employed by the
contractor could not get the benefit of the Act
since a dispute between them and the
management would not be an industrial dispute
between "employer" and workmen. It was with a
view to remove this difficulty in the way of
workmen employed by contractors that the
definition of employer has been extended by
Sub-clause (iv) of Section 2(i). The position thus
is: (a) that the respondents are workmen within
the meaning of Section 2(z), being persons
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employed in the industry to do manual work for
reward, and (b) they were employed by a
contractor with whom the appellant-company
had contracted in the course of conducting the
industry for the execution by the said contractor
of the work of removal of presumed which is
ordinarily a part of the industry. It follows
therefore, from Section 2(z) read with Sub-
clause (iv) of Section 2(i) of the Act they are
workmen of the appellant-company is their
employer."
113. It is evident that the decision in that case also
turned on the wide language of statutory definitions of
the terms "workmen" and "employer." So it does not
advance the case pleaded by the learned Counsel.
114. In the Saraspur Mills's case (supra), the question
was whether the respondents engaged for working in
the canteen run by the Co-operative Society for the
appellant company were the employees of the
appellant-Mills. The respondents initiated proceedings
under Section 79 of the Bombay Industrial Relations
Act, 1946 for payment of D.A. in terms of the award of
the Industrial Court. The appellant contested the claim
on the ground that the respondents were employees of
the co-operative society and not of the appellant. A
two-Judge Bench of this Court approached the
question from the point of view of statutory liability of
the appellant to run the canteen in the factory and
having construed the language employed in the
definitions of "employee" and "employer" in Sub-
sections (13) and (14), respectively of Section 3 of the
Act, and the definition of "worker" contained in Section
2(i) of the Factories Act and having referred to the
Basti Sugar Mill's case (supra), held that even though
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in pursuance of a statutory liability the appellant was
to run the canteen in the factory, it was run by the co-
operative society as such the workers in the canteen
(the respondents) would be the employees of the
appellant above. This case falls in Class (iii) mentioned
above.
115. In a three-Judge Bench decision of this Court in
Hussainsainbhai's case (supra), the petitioner who was
manufacturing ropes entrusted the work to the
contractors who engaged their own workers. When,
after some time, the workers were not engaged, they
raised an industrial dispute that they were denied
employment. On reference of the at dispute by the
State Government, they succeeded in obtaining an
award against the petitioner who unsuccessfully
changed the same in the High Court and then in the
Supreme Court. On examining various factors and
applying the effective control test, this Court held that
though there was no direct relationship between the
petitioner and the respondent yet on lifting the veil
and looking at the conspectus of factors governing
employment, the naked truth, through draped in
different perfect paper arrangement, was that the real
employer was the management not the immediate
contractor. Speaking for the Court, Justice Krishna
Iyer observed thus:
"Myriad devices, half-hidden in fold after fold of
legal form depending on the degree of
concealment needed, the type of industry, the
local conditions and the like may be resorted to
when labour legislation casts welfare obligations
on the real employer, based on Articles 38 39 42
43 and 43-A of the Constitution. The Court must
be astute to avoid the mischief and achieve the
(39 of 75)
[CW-4304/2018]
purpose of the law and not be misled by the
maya of legal appearances.
Of course, if there is total dissociation in
fact between the disowning management and the
aggrieved workmen, the employment is, in
substance and in real life terms, by another. The
management's adventitious connections cannot
ripen into real employment."
This case falls in Class (ii) mentioned above.
116. The above discussion amply justifies rejection of
the contentions of Mr. Shanti Bhusahan by us.
117. We find no substance in the next submission of
Mr. Shanti Bhushan that a combined reading of the
definition of the terms 'contract labour,''establishment'
and 'workman' would show that a legal relationship
between a person employed in an industry and the
owner of the industry is created irrespective of the fact
as to who has brought about such relationship.
118. We have quoted the definitions of these terms
above and elucidated their import. The word
'workman' as defined in wide terms. It is a generic
term of which contract labour is a species. It is true
that a combined reading of the terms 'establishment'
and "workman' shows that a workman engaged in an
establishment would have direct relationship with the
principal employer as a servant of master. But what is
true of a workman could not be correct of contract
labour. The circumstances under which contract labour
could be treated as direct workman of the principal
employer have already been pointed out above.
119. We are not persuaded to accede to the contention
that a workman, who is not an out worker, must be
(40 of 75)
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treated as a regular employee of the principal
employer. It has been noticed above that an out
worker falls within the exclusionary clause of the
definition of "workman.' The word 'out worker'
connotes a person who carries out the type of work,
mentioned in Sub-clause (c) of Clause (i) of Section 2,
of the principal employer with the material supplied to
him by such employer either (i) at his home or (ii) in
some other premises not under the control and
management of the principal employer. A person who
is not an out worker but satisfies the requirement of
the first limb of the definition of 'workman' would by
the very definition fall within the meaning of the term
'workman.' Even so, if such a workman is within the
ambit of the contract labour, unless he falls within the
aforementioned classes, he cannot be treated as
regular employee of the principal employer.
120. We have also perused all the Rules and Forms
prescribed thereunder. It is clear that at various stages
there is involvement of the principal employer. On
exhaustive consideration of the provisions of the CLRA
Act we have held above that neither they contemplate
creation of direct relationship of master and servant
between the principal employer and the contract
labour nor can such relationship be implied upon the
provisions of the Act on issuing notification under
Section 10(1) of the CLRA Act, a fortiorari much less
can such a relationship be found to exist from the
Rules and the Forms made thereunder.
121. The leftover contention of Ms. Indira Jaisingh
may be dealt with here. The contention of Ms. Indira
Jaisingh that the principles of contract law stricto
sensu do not apply to the labour and management is
too broad to merit acceptance.
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125. The upshot of the above discussion is outlined
thus:
(1)(a)Before January 28, 1986, the
determination of the question whether Central
Government or the State Government, is the
appropriate Government in relation to an
establishment, will depend, in view of the
definition of the expression "appropriate
Government" as stood in the CLRA Act, on the
answer to a further question, is the industry
under consideration carried on by or under the
authority of the Central Government or does it
pertain to any specified controlled industry; or
the establishment of any railway, cantonment
board, major port, mine or oilfield or the
establishment of banking or insurance company ?
If the answer is in the affirmative, the Central
Government will be the appropriate Government;
otherwise in relation to any other establishment
the Government of the State in which the
establishment was situated, would be the
appropriate Government.
(b)After the said date in view of the new
definition of that expression, the answer, to the
question referred to above, has to be found in
Clause (a) of Section 2 of the Industrial Disputes
Act; if (i) the concerned Central Government
company / undertaking or any undertaking is
included therein eo nomin, or (ii)any industry is
carried on (a) by or under the authority of the
Central Government or, (b) by railway company;
or (c) by specified controlled industry, then the
Central Government will be the appropriate
Government otherwise in relation to any other
establishment, the Government of the State in
(42 of 75)
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which that other establishment is situated; will
be the appropriate Government.
2(a) A Notification under Section 10(1) of the
CLRA Act prohibiting employment of contract
labour in any process, operation or other work in
any establishment has to be issued by the
appropriate Government:
(1) after consulting with the Central Advisory
Board or the State Advisory Board, as the case
may be, and
(2) having regard to
(i) conditions of work and benefits provided for
the contract labour in the establishment in
question; and
(ii) other relevant factors including those
mentioned in Sub-section (2) of Section 10
(b) Inasmuch as the impugned notification issued by
the Central Government on December 9, 1976 does
not satisfy the aforesaid requirements of Section 10, it
is quashed but we do so prospectively i.e. from the
date of this judgment and subject to the clarification
that on the basis of this judgment no order passes or
no action taken giving effect to the said Notification on
or before the date of this judgment, shall be called in
question in any Tribunal or Court including a High
Court if it has otherwise attained finality and/or it has
been implemented.
(3) Neither Section 10 of the CLRA Act nor any other
provision in the Act, whether expressly or by
necessary implication, provides for automatic
absorption of contract labour on issuing a notification
by appropriate Government under Sub-section (1) of
S. 10 prohibiting employment of contract labour, in
(43 of 75)
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any process, operation or other work in any
establishment. Consequently the principal employer
cannot be required to order absorption of the contract
labour working in the concerned establishment.
(4) We overrule the judgment of this Court in Air
India's case (supra) prospectively and declare that any
direction issued by any industrial adjudicator/ any
Court including High Court, for absorption of contact
labour following the judgment in Air India's case
(supra), shall hold good and that the same shall not be
set aside, altered or modified on the basis of this
judgment in cases where such a direction has been
given effect to and it has become final.
(5) On issuance of prohibition notification under
Section 10(1) of the CLRA Act prohibiting employment
of contract labour or otherwise, in an industrial dispute
brought before it by any contract labour in regard to
conditions of service, the industrial adjudicator will
have to consider the question whether the contractor
has been interposed either on the ground of having
undertaken to produce any given result for the
establishment or for supply of contract labour for work
of the establishment under a genuine contract or is a
mere ruse/camouflage to evade compliance of various
beneficial legislations so as to deprive the workers of
the benefit thereunder. If the contract is found to be
genuine but a mere camouflage, the so-called contract
labour will have to be treated as employees of the
principal employer who shall be directed to regularize
the services of the contract labour in the concerned
establishment subject to conditions as may be
specified by it for that purpose in the light of para 6
hereunder.
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(6) If the contract is found to be genuine and
prohibition notification under Section 10(1) of the
CLRA Act in respect of the concerned establishment
has been issued by the appropriate Government,
prohibiting employment of contract labour in any
process, operation or other work of any establishment
and where in such process, operation or other work of
the establishment the principal employer intends to
employ regular workmen he shall give preference to
the erstwhile contract labour, if otherwise found
suitable and, if necessary, by relaxing the condition as
to maximum age appropriately taking into
consideration the age of the workers at the time of
their initial employment by the contractor and also
relaxing the condition as to academic qualifications
other than technical qualifications.
126. We have used the expression "industrial
adjudicator" by design as determination of the
questions aforementioned requires inquiry into
disputed question of facts which cannot conveniently
be made by High Courts in exercise of jurisdiction
under Article 226 of the Constitution. therefore, in
such cases the appropriate authority to go into those
issues will be Industrial Tribunal / Court whose
determination will be amenable to judicial review.
In the result:
C.A. Nos. 6009-10/2001 @ SLPs (C) Nos. 12657-58 of
1998"
43. Learned Senior Counsel for the respondents has also
made arguments on merits of the case. The first argument in this
series is to the effect that no employer-employee relationship
(45 of 75)
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exists in the present case. In regard to this submission, learned
Senior Counsel for the respondents has submitted that the
Guidelines (Annexure-1) empowers the Banks to formulate their
own policy for engaging the Business Correspondents with the
approval of their Board of Directors.
44. Learned Senior Counsel for the respondents has also
referred to Clause-2 the aforementioned Guidelines (Annexure-1)
captioned as "Eligible individuals/entities". The relevant sub-clause
(i) of the said Clause 2 reads as under:-
"2. Eligible individuals/entities
The banks may engage the following individual entities
as B.C.
i) Individuals like retired bank employees, retired
teachers, retired government employees and ex-
serviceman, individual owners of kirana/medical/Fair
Price shops, individual Public Call Office (PCO)
operators, agents of Small Savings schemes of
Government of India/Insurance Companies, individuals
who own Petrol Pumps, authorized functionaries of well
run Self Help Groups (SHGs) which are linked to
banks, any other individual including those operating
Common Service Centres (CSCs);
45. Learned Senior Counsel for the respondents has also
drawn the attention of this Court towards clauses 2.2, 2.3, 6,
15.14 and 15.15 of agreement dated 15.12.2017 (Annexure-R/1)
and submitted that the Business Correspondents are entitled to
operate by themselves or through their employees/sub-
agents/sub-contractors.
(46 of 75)
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46. The said clauses 2.2, 2.3, 6, 15.14 and 15.15 of
agreement dated 15.12.2017 (Annexure-R/1) read as under:-
"2.2 SP shall ensure that their
agents/employees/sub-contractors.
(a) are holding minimum qualifications of 12th pass for
selecting them in the capacity of agent or employee.
Otherwise, SP shall obtain prior concurrence from the
Regional Office of the Bank.
(b) regular services are offered to the customers at
the service outlets of the Bank.
(c) are properly trained to handle with care, their
responsibilities particularly aspects like soliciting
customer, hours of calling, privacy of customer
information and informing the correct terms and
conditions of the products offered etc.
(d) adhere to extant instructions on Fair Practices
Code for lending as also code for collection of dues as
Recovery Agent subject to qualifying DRA training and
obtain certification for collection of dues and
repossession of security. It is essential that they
refrain from action that could damage the integrity
and reputation of the Bank.
(e) shall not resort to intimidation or harassment of
any kind either verbal or physical against any person
in their debt collection efforts, including acts intended
to humiliate publicly or intrude the privacy of the
borrowers' family members, referees and friends,
making threatening and anonymous calls or making
false and misleading representations.
(f) SP shall ensure that due diligence is done on
selected agents/employees and also obtain their police
verification before their appointment.
(g) Shall not engage in levying service charges over
and above the Bank's advised rates. SP will be liable
(47 of 75)
[CW-4304/2018]
for any such actions of agents/employees/sub-
contractors.
(h) Are having interoperable devices with updated
specifications released by the Bank/IBA/RBI or any
other agency.
2.3 SP may render the services through Sub-
Contractors subject to the condition that SP shall
obtain prior written approval of the Bank before
engaging Sub-Contractor(s). Notwithstanding approval
of the Bank for Sub-Contracting SP shall remain liable
to the Bank for acts/omissions of Sub-Contractors.
Before engaging Sub-Contractor, the Service Provider
shall carry out due diligence process on sub-
contracting/sub-contractor to the satisfaction of the
Bank and Bank should have access to such records. In
the event of sub-contracting, the SP shall ensure that
suitable documents including confidentiality agreement
are obtained from the subcontractor and the SP shall
ensure that the secrecy and faith of Bank's
data/processes is maintained.
6. Relationship Between the Parties:-
6.1 It is specifically agreed that the SP shall act as
independent service provider and shall not be deemed
to be the Agent of the Bank except in respect of the
transactions/services which give rise to Principal Agent
relationship by implication.
6.2 Neither SP nor its employees, agents,
representatives, Sub-Contractors shall hold out or
represent as agents of the Bank. None of the
employees, representatives or agents of SP shall be
entitled to claim permanent absorption or any other
claim or benefit against the Bank.
15. Miscellaneous:
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15.14 SP shall ensure that all the appointed agents or
employees undergo mandatory training and
certification as per the policy decided by the Bank.
15.15 SP ensures that his agents or employees
conduct all the Banking transactions online on real-
time basis and provide printed receipt for all
transactions to customers."
47. Learned Senior Counsel for the respondents has made a
categorical submission that the service jurisprudence never
envisages that an employee will be able to delegate its function to
a third person, and thus, the same itself clearly shows that no
employer-employee relationship is there in the present set of
facts.
48. In support of his arguments on merits, learned Senior
Counsel for the respondents has placed reliance on the judgment
rendered by the Division Bench of Hon'ble Gujarat High Court in
Gulamrasul Habibhai Badi & Ors. Vs. State Bank of India
(SBI) & Ors. (LPA No.1146/2017 decided on 11.10.2017) as
well as the judgment rendered by the Division Bench of Hon'ble
Allahabad High Court in Diwaker Prasad Pandey & Ors. Vs.
Union of India & Ors. (Writ-C No.5359/2018 decided on
08.02.2018), relevant portions of which reads as under:-
Gulamrasul Habibhai Badi & Ors. Vs. State Bank of India
(SBI) & Ors. (supra):
"15. From the aforesaid decisions, it can be said that if
the appointments which have not been made
according to the constitutional scheme are regularised,
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that would amount to perpetuate an illegality in the
matter of public employment and that would be a
negation of the constitutional scheme adopted by the
people of this country. If the person is not appointed in
terms of the relevant rules or in adherence to Articles
14 and 16 of the Constitution of India, such
appointment cannot be regularized.
16. However, at this stage, we would like to clarify
that in fact the present petitioners are not at all
employees of the respondent-bank. As discussed
hereinabove, they have entered into an agreement
with the respondent-bank as a service provider for
running business on the commission basis. There is no
employer-employee relationship between the
petitioners and respondent-bank and therefore there is
no question of claiming regularization or similar pay
scale which the regular employees of the respondent-
bank are getting.
17. Learned senior advocate Mr.Oza has placed
reliance on the decision rendered by the Hon'ble
Supreme Court in the case of Dhirendra Chamoli
(supra). However, the said decision would not render
any assistance as in the present case, as discussed
hereinabove, an agreement is entered into between
the petitioners and the respondent- bank by which the
petitioners agreed to render the services as service
provider and thereby they are appointed as BCs. The
terms of the agreement and the scheme are already
discussed hereinabove and therefore the said decision
would not be applicable to the facts of the present
case.
18. Similarly, the decision rendered by the Hon'ble
Supreme Court in the case of Surinder Singh and
another (supra) relied upon by the petitioners would
(50 of 75)
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not be applicable to the facts of the present case as in
the said case, it is held that the Central Government,
the State Governments and all public sector
undertakings are expected to function like model and
enlightened employers and they are liable to pay equal
pay for equal work to all the daily rated employees.
However, in the present case, as discussed
hereinabove, the petitioners are not employed by the
respondent-bank but they are acting as service
provider as per the agreement entered into with the
respondent-bank. It is also required to be noted that
the nature of duties performed by the petitioners is
different than the regular employees employed by the
respondent- bank. Therefore, this decision is not
applicable to the facts of the present case.
19. Similarly, the decision rendered by the Hon'ble
Supreme Court in the Jagjit Singh (supra), the Hon'ble
Supreme Court has reiterated the principle of equal
pay for equal work and observed that the same be
extended to temporary employees differently
designated such as work charge, daily wage, casual,
adhoc, contractual and the like. We cannot dispute the
aforesaid propositions laid down by the Hon'ble
Supreme Court. However, in the present case, there is
no employer-employee relationship between the
parties and the petitioners are not employed as
discussed hereinabove and therefore the said decision
is not applicable to the facts of the case.
20. In the case of Gajaji Gopalji Jadeja (supra), the
border wing home guards were duly recruited, selected
and appointed after public notice, physical test as well
as oral and written test and thereafter they were
enrolled as part time border wing home guards. They
have been engaged in full time duty, round the clock
and throughout the year, fully trained personnel. In
(51 of 75)
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the facts of the said case, the Division Bench held that
they are entitled to all the service benefits discussed in
the said order. However, in the facts of the present
case, the said decision would not be applicable.
21. Lastly, learned counsel Mr.Oza has placed reliance
upon a decision rendered by the Division Bench of this
Court in the case of Shree Yogakshem Foundation for
Human Dignity (supra). However, in the said case, the
concerned candidates were recruited on various
permanent posts by giving advertisement and after
following complete selection procedure. The State
Government by issuing resolution dated 16.2.2006 and
29.4.2010, declared the policy to appoint the
concerned persons on permanent posts on fixed pay
basis. While examining such issue, the Division Bench
of this Court modified the resolutions and gave certain
directions to the State Government. However, learned
senior counsel Mr.Oza has fairly submitted that the
aforesaid decision rendered by the Division Bench of
this Court is stayed by the Hon'ble Supreme Court in
the Special Leave Petition filed by the state
Government which is still pending. Even otherwise, as
discussed hereinabove, the said decision would not be
applicable to the facts of the present case.
22. In view of the aforesaid discussion and in view of
the reasoning recorded by the learned single Judge,
we are of the view that learned single Judge has not
committed any error while dismissing the petition
which requires any interference in the present appeal.
Accordingly, the present appeal is dismissed.
Consequently, the civil applications are also
dismissed."
Diwaker Prasad Pandey & Ors. Vs. Union of India & Ors.
(supra):
(52 of 75)
[CW-4304/2018]
"6. Considered the submissions of the learned counsel
for the parties. Admittedly the engagement of the
petitioners was in pursuance to the agreement
executed, which was time to time renewed. However,
subsequently, the decision was taken that the
Individual Business Correspondent should work with
Central Service Providers. After expiry of the
agreement of individual Business Correspondence, the
Bank may or may not extend the agreement for extra
period. Further, in case of those Business
Correspondence including the petitioners, agreements
have expired. Hence the direction was given to stop
opening of the account and further advised that they
may convert themselves as Central Service Provider, if
they were interested to work as Business Service
Providers. If the Bank was not interested to take
facility of Business Correspondents and the period was
expired then it is not a fit case to issue a writ of
mandamus to the Bank to renew the agreement
because it is a purely contractual service.
7. Under such circumstances, it is not a fit case to
interfere in the matter under Article 226 of the
Constitution of India by issuing a writ of certiorari or a
writ of mandamus.
8. Accordingly, the present writ petition is hereby
dismissed."
49. Learned Senior Counsel for the respondents has also
made the submission regarding the nature of engagement of the
present petitioners to be contractual, and thus, harped upon the
fact that the present matter is not relating to service
jurisprudence. Moreover, as per learned Senior Counsel for the
(53 of 75)
[CW-4304/2018]
respondents, there is no challenge pertaining to the terms of the
contract in the present case, fixing the term in para 1.2 of the
document Annexure-R/1. The said para 1.2 reads as under:-
"1.2 This Agreement shall be in force for a period of 5
months from the date of its execution, unless
terminated by the Bank by notice in writing in
accordance with the termination clauses of this
Agreement. The services of service provider will be
reviewed after 5 months."
50. Learned Senior Counsel for the respondents has also
referred to Clause 10 of the Agreement (Annexure-R/1), which
provides for term and termination. The relevant clauses 10.6 and
10.7 thereof, reads as under:-
"10.6 In the event of termination of the Agreement or
on the expiry of the term/renewed term of this
Agreement, the Service Provider shall render all
reasonable assistance and help to the Bank and any
new contractor engaged by the Bank for the smooth
switch over and continuity of the Services or if so
required by the Bank take all necessary steps to bring
the Services to a close in a prompt and orderly
manner.
10.7 Upon termination or expiration of this
Agreement, all rights and obligations of the Parties
hereunder shall cease, except:
(a) such rights and obligations as may have accrued
on the date of termination or expiration;
(b) the obligation of confidentiality; and
(c) any right which a Party may have under the
Application Law."
(54 of 75)
[CW-4304/2018]
In support of this submission, learned Senior Counsel for the
respondents has relied upon the judgment rendered by this
Hon'ble Court in Union of India & Ors. Vs. Om Prakash
(D.B.Civil Special Appeal No.117/1998 decided on
05.02.1998), relevant portion of which reads as under:-
"8. Having heard the learned counsel and having
perused the record. We are of the view that the
petitioner was totally based on contractual relationship
and raised purely contractual disputes. It has not been
the case of the petitioner that the contract for
operation of the 'trolly' or the vending license was
governed by any statutory Rules. After the license had
expired on March 31, 1995 no written agreement was
entered into and the petitioner continued to operate
the 'trolly'. When this came notice to the authorities
they stopped the operation on June 4, 1996.
Apparently, they were prepared to regularise the
operation by getting an agreement entered into for
period up to March 31, 1996. Hence the earlier petition
was disposed of by directing the petitioner to present
before the Divisional Railway Manager and execute
agreement for that period.
9. It is not the petitioner's case that it was obligatory
on the Railway Authorities to renew the license for
further period at the option of the petitioner or
automatically. The agreement for vending license,
Annexure/1 to the petition makes it clear that it was
only a license for a period of five years commencing
from April 01, 1990. Renewal for subsequent period
was at the discretion of the Railway Administration. It
is also provided in the agreement that either party
shall be at liberty to terminate the agreement without
(55 of 75)
[CW-4304/2018]
assigning any reason, on giving three months notice in
writing to do so and the licensee would be entitled to
refund of the monthly sum paid for unexpired period.
If the same had been paid. This clearly means that the
Railway Authorities under the contract had right to
terminate the agreement even before expiry of the
period of five years. In such a situation, to say that
they were obliged to renew it for a further period,
would not be proper. In our opinion, while extending
the period granted for consideration of renewal of
licence on September 26, 1997, the learned Single
Judge clearly exceeded his jurisdiction when he made
the extension conditional upon grant of provisional
license to the petitioner up to October 20, 1997. He
had clearly become functus officio after having
disposed of S.B. Civil Writ Petition No.2261 of 1997
and he, at the most could have extended the period
for consideration of renewal but could not have added
something to the original direction given in S.B. Civil
Writ Petition No.2261 of 1997.
10. In such circumstances, we feel that the remarks of
the learned Single Judge in the impugned order that
the refusal to renw the license was unfair, arbitrary
and unsustainable at law were not justified. His
observation, that the mater was not being sent for
reconsideration before the authorities for renewal of
license "considering the manner in which and the
conduct in which t he orders have been passed giving
scant regards to the Courts Orders" are also not
justified. There was no specific direction and there
could not legally be any to renew the licence. The
direction to consider renewal cannot be construed. As
direction to renew the licence and the Railway
Administration was free to refuse renewal of licence
after due consideration. There was therefore no
(56 of 75)
[CW-4304/2018]
question of the Authorities paying scant regard to the
Court Order.
11. So far as reasons for refusal to renew, as already
seen under the agreement it was not obligatory to give
reason. There is no material on record to hold that the
renewal to renew was malafide or arbitrary. The
learned Single Judge therefore clearly erred in
renewing the agreement himself for a further period of
five years.
12. We therefore, allow this appeal and set aside the
Order of the learned Single Judge, holding that the
petition was not entertainable as it was based on
contractual relationship and also holding that no
direction could be given in exercise of Article 226 for
renewal of a contract against the terms of a contract
agreement. The petition deserves to be dismissed and
is hereby dismissed. No order as to costs."
51. Learned Senior Counsel for the respondents has also
made submission in respect of the Guidelines issued by the RBI,
which is Annexure-1 of the writ petition. The said Guidelines
envisage framing of policy for engaging the Business
Correspondents by the concerned Banks; the same are based on
pure commercial transactions. As per learned Senior Counsel for
the respondents, even otherwise, such Guidelines have been
issued under Section 23 of the Banking Regulation Act, 1949,
whereunder the RBI only issues permission to a Bank to have its
operation at a particular place etc. Moreover, the Guidelines issued
(57 of 75)
[CW-4304/2018]
by the RBI are inter se between the Banks and the RBI, and no
mandamus can be issued to enforce these Guidelines. In this
regard, learned Senior Counsel for the respondents has placed
reliance on the precedent law laid down by the Hon'ble Apex Court
in Oriental Bank of Commerce Vs. Sunder Lal Jain & Ors.,
reported in (2008) 2 SCC 280, relevant portion of which reads
as under:-
"12. These very principles have been adopted in our
country. In Bihar Eastern Gangetic Fishermen
Cooperative Society Ltd. v. Sipahi Singh and Ors.
[1978]1SCR375 , after referring to the earlier
decisions in Lekhraj Satramdas Lalvani v. Deputy
Custodian-cum-Managing Officer [1966]1SCR120 ; Dr.
Rai Shivendra Bahadur v. The Governing Body of the
Nalanda College (1962)ILLJ247SC and Dr. Umakant
Saran v. State of Bihar (1972)IILLJ580SC , this Court
observed as follows in paragraph 15 of the reports:
"15.... There is abundant authority in favour of
the proposition that a writ of mandamus can be
granted only in a case where there is a statutory
duty imposed upon the officer concerned and
there is a failure on the part of the officer to
discharge the statutory obligation. The chief
function of a writ is to compel performance of
public duties prescribed by statute and to keep
subordinate Tribunals and officers exercising
public functions within the limit of their
jurisdiction. It follows, therefore, that in order
that mandamus may issue to compel the
authorities to do something, it must be shown
that there is a statute which imposes a legal duty
and the aggrieved party has a legal right under
(58 of 75)
[CW-4304/2018]
the statute to enforce its performance. ... In the
instant case, it has not been shown by
respondent No. 1 that there is any statute or rule
having the force of law which casts a duty on
respondents 2 to 4 which they failed to perform.
All that is sought to be enforced is an obligation
flowing from a contract which, as already
indicated, is also not binding and enforceable.
Accordingly, we are clearly of the opinion that
respondent No. 1 was not entitled to apply for
grant of a writ of mandamus under Article 226 of
the Constitution and the High Court was not
competent to issue the same."
Therefore, in order that a writ of mandamus may be
issued, there must be a legal right with the party
asking for the writ to compel the performance of
some-statutory duty cast upon the authorities. The
respondents have not been able to show that there is
any statute or rule having the force of law which casts
a duty on the appellant bank to declare their account
as NPA from 31st March, 2000 and apply R.B.I.
guidelines to their case.
13. The High Court, therefore, erred in issuing a writ
of mandamus directing the appellant bank to declare
the respondents' account as NPA from 31st March,
2000 and to apply the RBI Guidelines to their case and
communicate the outstandings which shall be
recoverable by quarterly installments over a period of
two years. The later part of the order passed by the
High Court wherein a direction has been issued to stay
the recovery proceedings and the recovery certificate
issued against the respondents has been cancelled is
also wholly illegal as the decree passed by the DRT
had attained finality and proceedings for execution of
(59 of 75)
[CW-4304/2018]
decree could not be stayed in an independent writ
petition when the respondents had not chosen to assail
the decree by filing an appeal, which is a statutory
remedy provided under Section 20 of Recovery of
Debts Due to Banks and Financial Institutions Act,
1993."
52. Learned Senior Counsel for the respondents has further
submitted that there is no averment made in the present writ
petitions laying challenge to the policy of the State Bank of India
on the ground of violation of the RBI Guidelines; nor there is any
challenge to the contracts entered into by the individual persons
with the Bank. Moreover, the policy of the State Bank of India has
been framed in view of ever increasing number of cases of fraud
by individual Business Correspondents. As per learned Senior
Counsel for the respondents, the term in the contract contains
stipulation regarding the period of contract and its expiry. The
liberty granted by this Hon'ble Court in the earlier litigation was as
per law i.e. arbitration clause contained in the agreement.
However, no liberty was granted to file fresh writ petition.
53. Learned Senior Counsel for the respondents however,
submitted that Section 14 of the Specific Relief Act clearly
provides that the specific performance of a contract cannot be
granted where compensation can be adequate relief, which
eventually arises only when there is a challenge to the
termination/cancellation of the contract. Learned Senior Counsel
for the respondents further submitted that in terms of Section 14
(60 of 75)
[CW-4304/2018]
(1)(c), the contract which in its nature is determinable cannot be
specifically enforced. The engagement, in the present case, being
for a fixed period, the same comes to an end automatically
unless renewed.
54. Section 14 of the Specific Relief Act, in extenso, reads
as under:-
"14. Contract not specifically enforceable.-
(1) The following contracts cannot be specifically
enforced, namely:-
(a) a contract for the non-performance of which
compensation in money is an adequate relief
(b) a contract which runs into such minute or
numerous details or which is so dependent on the
personal qualifications or volition of the parties, or
otherwise from its nature is such, that the court
cannot enforce specific performance of its material
terms;
(c) a contract which in its nature determinable;
(d) a contract the performance of which involves the
performance of a continuous duty which the court
cannot supervise.
(2) Save as provided by the Arbitration Act, 1940 (10
of 1940), no contract to refer present or future
differences to arbitration shall be specifically enforced;
but if any person who has made such a contract (other
than an arbitration agreement to which the provisions
of the said Act apply) and has refused to perform it,
sues in respect of any subject which he has contracted
to refer, the existence of such contract shall bar the
suit.
(61 of 75)
[CW-4304/2018]
(3)Notwithstanding anything contained in clause (a) or
clause (c) or clause (d) of sub-section (1), the court
may enforce specific performance in the following
cases:--
(a) where the suit is for the enforcement of a contract,
--
(i) to execute a mortgage or furnish any other security for securing the repayment of any loan which the borrower is not willing to repay at once: Provided that where only a part of the loan has been advanced the lendor is willing to advance the remaining part of the loan in terms of the contract; or
(ii) to take up and pay for any debentures of a company;
(b) where the suit is for,--
(i) the execution of a formal deed of partnership, the parties having commenced to carry on the business of the partnership; or
(ii) the purchase of a share of a partner in a firm;
(c) where the suit is for the enforcement of a contract for the construction of any building or the execution of any other work on land: Provided that the following conditions are fulfilled, namely:--
(i) the building or other work is described in the contract in terms sufficiently precise to enable the court to determine the exact nature of the building or work;
(ii) the plaintiff has a substantial interest in the performance of the contract and the interest is of such a nature that compensation in money for non-
performance of the contract is not an adequate relief; and
(iii) the defendant has, in persuance of the contract, obtained possession of the whole or any part of the land on which the building is to be constructed or other work is to be executed."
(62 of 75) [CW-4304/2018]
55. Lastly, learned Senior Counsel for the respondents has referred to a letter dated 27.09.2017 issued by the Indian Banks Association and submitted that the present writ petitions have no legs to stand. Moreover, as per learned Senior Counsel for the respondents the said letter dated 27.09.2017, in no manner, suggests that the Banks at any stage agreed that the employer- employee relationship exists with the Business Correspondents. In fact, the Banks always took the stand that no employer-employee relationship existed. Learned Senior Counsel for the respondents also submitted that service of notice by the Employees Provident Fund Organization is not a finding, whereas findings have already been recorded by the Division Benches of Hon'ble Gujarat High Court and Hon'ble Allahabad High Court, as aforementioned, which were to the effect that no employer-employee relationship exists between the Business Correspondents and the Banks.
56. The contentious pleadings and the assiduous submissions founded thereon have been duly assayed, alongwith the precedent laws cited at the Bar.
57. This Court finds that the order dated 16.11.2017 passed by this Hon'ble Court in S.B.Civil Writ Petition No.6462/2017 (Nitin Kumar Agrawal & Ors. Vs. The State Bank of India & Ors.), whereby the writ petitions were dismissed as having become infructuous, however, with liberty to the petitioners to take appropriate remedies against the future action, putting their arrangement to peril, in accordance with law, as also the fact that (63 of 75) [CW-4304/2018] the adjudication in the earlier writ petition was not done on merits of the case, the same cannot be said to operate as res judicata in the present case.
58. In Noharlal Verma v. Distt. Coop. Central Bank Ltd., reported in (2008) 14 SCC 445, the Hon'ble Apex Court has held that the earlier application preferred by the appellant therein became infructuous; the earlier application was not decided on merits, and therefore, this does not operate as res judicata. The relevant para of the said judgment reads as under:
"18. So far as res judicata is concerned, in our opinion, the appellant is right in submitting that the Tribunal was not justified in holding that the application filed by the appellant was barred by res judicata. It is clear from the facts stated hereinabove that the application was filed by the appellant to the Joint Registrar, Raipur. It was pending. Meanwhile, however, District Bastar had its own Registry and hence, an application was submitted to the District Registrar, Bastar. The application preferred by the appellant to the Joint Registrar, Raipur, in the circumstances, became infructuous. It was not decided on merits. As per settled law, such decision does not operate as res judicata. The High Court was, therefore, right in coming to the conclusion that the Tribunal was in error in dismissing the application on the ground of res judicata. That part of the order passed by the Tribunal was, therefore, rightly not approved by the High Court".
59. The question pertains to the livelihood, and thus, the rights of the petitioners to agitate the action, diminishing their rights protected under Article 21 of the Constitution of India, (64 of 75) [CW-4304/2018] cannot be denied, while availing the remedy of writ, which obviously is available to the petitioners in such circumstances.
60. In Olga Tellis & Ors. Vs. Bombay Municipal Corporation & Ors., reported in (1985) 3 SCC 545, the Hon'ble Apex Court has laid down the following precedent law:-
"32. . . . . . . . .The sweep of the right to life conferred by Article 21 is wide and far-reaching. It does not mean merely that life cannot be extinguished or taken away as, for example, by the imposition and execution of the death sentence, except according to procedure established by law. That is but one aspect of the right to life. An equally important facet of that right is the right to livelihood because, no person can live without the means of living, that is, the means of livelihood. If the right to livelihood is not treated as a part of the constitutional right to life, the easiest way of depriving a person of his right to life would be to deprive him of his means of livelihood to the point of abrogation. Such deprivation would not only denude the life of its effective content and meaningfulness but it would make life impossible to live. And yet, such deprivation would not have to be in accordance with the procedure established by law, if the right to livelihood is not regarded as a part of the right to life. That, which alone makes it possible to live, leave aside what makes life livable, must be deemed to be an integral component of the right to life. Deprive a person of his right to livelihood and you shall have deprived him of his life. . . . . . . . So unimpeachable is the evidence of the nexus between life and the means of livelihood. They have to eat to live: only a (65 of 75) [CW-4304/2018] handful can afford the luxury of living to eat. That they can do, namely, eat, only if they have the means of livelihood. That is the context in which it was said by Douglas, J. in Baksey[347 US 442, 472 : 98 L Ed 829 (1954)] that the right to work is the most precious liberty that man possesses. It is the most precious liberty because, it sustains and enables a man to live and the right to life is a precious freedom. "Life", as observed by Field, J. in Munn v. Illinois [(1877) 94 US 113] means something more than mere animal existence and the inhibition against the deprivation of life extends to all those limits and faculties by which life is enjoyed. This observation was quoted with approval by this Court in Kharak Singh v. State of U.P. [AIR 1963 SC 1295 : (1964) 1 SCR 332 : (1963) 2 Cri LJ 329] ."
61. In the present case, the respondents have denied the employer-employee relationship; but by way of Scheme, the RBI, which is the Apex Institution of Banking in this country, under a common policy approach regarding banking services, has taken an initiative, in the related exercise, for increasing the banking outreach and ensuring greater financial inclusions, which has to be followed by all Nationalized and Private Banks of the country.
62. The significant policy decisions were also taken and the Banks were accordingly permitted to engage Business Correspondents on certain terms and conditions, after adopting a regular selection process, which includes an advertisement and also laying down of the eligibility conditions therefor.
(66 of 75) [CW-4304/2018]
63. The Business Correspondents were of two types, namely, (i) Corporate Business Correspondents and (ii) Individual Business Correspondents, and the aim of having Individual Business Correspondents was to reach to the far flung areas where a branch or regular employee of the Bank may not prove to be financially viable. The Individual Business Correspondents were engaged by the Banks so as to target the rural folk and the companies were permitted with the intention of further intensifying the process of outreaching the banking services to the remotest and unbankable areas. The terms and conditions for engaging the petitioners clearly reveals employer-employee relationship between the Business Correspondents and the Banks.
64. The eligibility of individuals like retired persons, owners of kirana store/medical/Fair Price shops would not have any affect on the nature of work performed by the petitioners being the contractual appointees, as the various relevant documents indicate that the petitioners have been given appointment on the conditions, which have been stipulated by the Bank itself.
65. As far as entitlement of the Business Correspondents to work in that capacity is concerned, the same is part of the contractual condition to strengthen their hands for completing the tasks of making inroads through the rung of citizens, who are otherwise not accessible to the mainstream banking.
66. On a careful reading of the RBI Guidelines, it is revealed that the same have been issued under Section 23 of the Banking Regulation Act, 1949, and such Guidelines are supposed (67 of 75) [CW-4304/2018] to be a guiding factor to the Banks of this country, and thus, were to be applied by the Banks without any violation thereof.
67. The national spectrum of Banking, which has a statutory influence of the RBI, clearly reflects that the Business Correspondents were required, in terms of the policy of Banking, to reach the last line of the citizens, who may be inaccessible due to rural existence, geographical conditions, economically under developed clusters, far flung areas and other difficult to banking zones.
68. The rising trend/pattern of the State functionaries hiring and using contractual/ad hoc employees for carrying out perennial jobs for years altogether and dispensing with their services like completely disposable commodities, amounts to an unfair dilution and negation of the precious constitutional guarantees. No State can be allowed to violate inviolable fundamental rights guaranteed by the Constitution of India.
69. The precedent laws cited by learned counsel for the petitioners clearly indicate the settled legal proposition that one set of contractual employees cannot be replaced by another set of contractual employees, unless their conduct and performance is under the cloud. Such contractual employees could be replaced by regularly selected employees by the employer, and further, if the scheme or project, in which such employees are working itself comes to an end.
70. The precedent law laid down by the Division Bench of this Hon'ble Court in State of Rajasthan Vs. Kusum Devi & (68 of 75) [CW-4304/2018] Ors. [D.B.Civil Special Appeal (Writ) No.1231/2017 decided on 20.03.2018], which has been referred by this Court in the judgment rendered in Mahendra Kumar & Anr. Vs. Union of India & Ors. (supra) cited by learned counsel for the petitioners and as reproduced hereinabove, throw much weight behind the petitioners.
71. In the instant case, the employers falling under the definition of 'State' under Article 12 of the Constitution of India have clearly deployed a mechanism to exploit the masses of this country by undermining their right to livelihood by imposing conditions, which admittedly, do not provide for the protection and strength of a regular appointment, but even take away the basic protection available to contractual employees. The law is now well settled that until the contractual appointment continues to fulfill the task, for which such contractual appointees have been appointed and the work is being done satisfactorily, the rights of such contractual appointees normally need to be protected to this extent, unless they are being sought to be replaced by regularly selected employees, or the project/scheme under which they are working itself comes to an end.
72. The present case in hand is not a case where the work being discharged by the Business Correspondents has to come an end, but the only thing is that they are being placed under the corporates, which would only render them exposed to the exploitative tendencies of a corporate entity, particularly in light of (69 of 75) [CW-4304/2018] the fact that the corporate entity itself would not have any stake in the institution, and thus, the institutional welfare of its employees would never be its prerogative.
73. The impugned action of the respondents also runs contrary to the very purpose, for which the Business Correspondents were employed. Admittedly, the accessibility and reach of banking services is far from adequate in the rural and remote areas. The push of government policies to expand the net of banking services and dispensing benefits/grants/subsidies through the banking channel, has given a new impetus to the purpose and role of Business Correspondents. The reality and challenges of rural/remote areas have not diminished in any manner. The Corporates, who as a model operate on considerations of profitability and commercial viability, cannot even be expected to further the cause of banking access to all in remote/rural areas. The States functionaries cannot be allowed to shun their constitutional responsibilities and goals, while continuing to operate as biggest players in a particular segment.
74. This Court also finds that the judgments cited by learned Senior Counsel for the respondents do not apply in the present facts and circumstances, as the writ jurisdiction is a wide jurisdiction and cannot be ousted merely on the ground that conditions, which have been laid down in respect of the contractual appointment, were such that the employer Banks can wash away their hands from their responsibility to take work from the Business Correspondents in their direct supervision. Even if there is a risk factor, then also the Banks have to find ways to (70 of 75) [CW-4304/2018] minimize those risks; however, they cannot ride over the shoulders of the poor Business Correspondents to bring them in the corporate arena, as the recent examples have shown that the corporate houses are not fully risk proof and they have caused fabric damage to the banking system of this country, more than the one caused by the individuals.
75. Thus, the argument of learned Senior Counsel for the respondents that to plug the loopholes and risks in the individual Business Correspondents, the corporatization of the same is being permitted, does not hold good, as it is common knowledge that some of the corporate houses have caused huge damages to the fabric of the banking structure of this country at the cost of a poor man and the society at large.
76. The argument of learned Senior Counsel for the respondents regarding non-existence of the employer-employee relationship, in the precedent law so cited, would not hold good in the present set of facts and circumstances, as in these cases the Banks have admittedly issued advertisement and invited the petitioners to work as Business Correspondents with the Banks on particular terms and conditions, which include eligibility criteria as well.
77. The petitioners in this case are not seeking regularization in the public employment. The petitioners are merely seeking that their services may not be transferred to the corporate entities, as it would defeat the purpose of their employment, create scope for exploitation and would render the (71 of 75) [CW-4304/2018] petitioners very weak and their right to livelihood would also be denuded of fundamental protections.
78. Learned Senior Counsel for the respondents has harped upon the alternative remedy, but this Court has seen that there is consistency in the law laid down by the Hon'ble Apex Court from time to time that every case where right to livelihood is at stake, the same calls for intervention in the writ jurisdiction.
79. The judgment rendered by the Hon'ble Gujarat High Court in Prabal Kumar Kulshrestha and 58 Others Vs. Bank of India and 3 Others (supra), although reproduced hereinabove, but reiteration of the relevant portion thereof would be apposite, and the same reads as under:-
" From the materials which have been brought on record before this Court, it is apparent that the respondent bank has not examined functioning of the petitioners, individually, with reference to the work performed in the context of the provisions contained in the guidelines. No reasons have been assigned, and therefore, the conclusion drawn in the instructions that petitioners' working was not in accordance with the guidelines, is not liable to be sustained. Petitioners' contention that only in Agra Region such order has been passed, has also not been taken into consideration.
Learned counsel for the respondent bank faced with the aforesaid situation submits that instead of keeping the matter pending, it would be appropriate to dispose off the writ petition with liberty to respondents to act in accordance with law.
In the absence of any reasons and findings returned in the order, holding petitioners' working not to be in accordance with the guidelines framed, the action of respondents, terminating their engagement, cannot be (72 of 75) [CW-4304/2018] sustained. Consequently, the writ petition is allowed. The order dated 16.3.2016 and 18.3.2016 are set aside. It shall, however, be open for the respondent bank to proceed, afresh, in accordance with law."
80. It would also be apt to reiterate the relevant portion of the judgment rendered by the Hon'ble Gujarat High Court in Gulamrasul Habibhai Badi & Ors.Vs. State Bank of India (SBI) & Ors. (supra), and the same reads as under:
"15. From the aforesaid decisions, it can be said that if the appointments which have not been made according to the constitutional scheme are regularised, that would amount to perpetuate an illegality in the matter of public employment and that would be a negation of the constitutional scheme adopted by the people of this country. If the person is not appointed in terms of the relevant rules or in adherence to Articles 14 and 16 of the Constitution of India, such appointment cannot be regularized.
16. However, at this stage, we would like to clarify that in fact the present petitioners are not at all employees of the respondent-bank. As discussed hereinabove, they have entered into an agreement with the respondent-bank as a service provider for running business on the commission basis. There is no employer-employee relationship between the petitioners and respondent-bank and therefore there is no question of claiming regularization or similar pay scale which the regular employees of the respondent- bank are getting."
The said judgments cannot be read against the present petitioners, as it is clear that the petitioners do not fall under the (73 of 75) [CW-4304/2018] class of 'Service Provider', but have been specifically brought into the contractual regime of employees to profess the banking amongst the underprivileged and inaccessible class of economy, and thus, they cannot be denied their right to continue as Business Correspondents - until the project continues and until their performance is found to be satisfactory or unless they are being sought to be replaced by regular selected employees - simply on the ground that they were only service providers.
81. We are in agreement with the learned counsel for the petitioners to this extent that the Service Provider is a person, who provide requisite services - lock, stock and barrel - on being paid, whereas in this case, the employer is paying an amount to the petitioners for getting several works done, which include opening the accounts, financial transaction, getting FDRs, RDs payment under the Atal Pension Yojana, recovery of loan amount, payment with regard to the government project, opening of Jan Dhan Accounts, etc., and thus, the same are the banking jobs, which on behalf of the Banks, are being conducted by the petitioners as Business Correspondents, and thus, it cannot be said that the petitioners are merely service providers to the Bank, as in fact, they are providing banking services to the customers on behalf of the Banks.
82. The respondents have failed to show even a single reason as to why the petitioners are being placed in the hands of the corporate companies and as to what was the need of taking such action so as to bring them under such arena, more (74 of 75) [CW-4304/2018] particularly, when the petitioners are providing satisfactory services to the respondents.
83. It is not the case of the respondents that the petitioners' services are not satisfactory and they are not able to perform the tasks, which have been assigned to them by the respondents.
84. The respondents have further failed to satisfy this Court, on the strength of the relevant RBI Guidelines, as to the function of the Business Correspondents, like the present petitioners, which could be performed by the corporate entities in a better way.
85. The individuals having the requisite skills and vast experience in the related field were required to utilize their skills and experience to outreach the banking services to those areas, where the banking system would ordinarily not even be existing, which is a daunting task, and the same is being performed by the petitioners to the utmost satisfaction of the respondents, and thus, when the petitioners are providing satisfactory services to the respondents, they should not be saddled with the unfair practice of putting them in the hands of corporates, which could be exploiting these employees, as the corporates do not have direct stakes in these employees, which would encourage them to provide satisfactory remuneration and working conditions to them.
86. The network of Business Correspondents has been created by the RBI Guidelines and circulars issued from time to time. This Court finds that the constitutional mandate requires the (75 of 75) [CW-4304/2018] relevance of the various communications and the policy in vogue as reflected in the RBI circulars need to be strengthened, lessening the gap between have and have nots, so as to achieve the desired goals to outreach the banking services to the areas, where the banking services do not even exist.
87. In light of the aforesaid observations and the aforementioned precedential backdrop, the present petitioners need to be protected, and therefore, the present writ petitions are allowed to the extent that while quashing and setting aside the action of the respondents of corporatization of the present petitioners as Individual Business Correspondents, the respondents are directed to continue the petitioners as Business Correspondents directly with them, as they are continuing for last many years and the respondents are also directed not to terminate the services of the petitioners so as to replace them by another set of contractual employees or Corporate Business Correspondents, unless there is a performance deficit on the part of the petitioners.
(DR. PUSHPENDRA SINGH BHATI)J. Skant/-