Madhya Pradesh High Court
State Bank Of India vs Sate Bank Of India Employees Union on 4 April, 2017
:: 1 ::
Writ Petition No.18849/2012
HIGH COURT OF MADHYA PRADESH : JABALPUR
BEFORE HON. SHRI JUSTICE SANJAY YADAV
Writ Petition No.18849/2012
State Bank of India
versus
State Bank of India Employees Union
-----------------------------------------------------------------------------------------------------------------------------------
Shri Ashish Shroti, learned counsel for petitioner.
Shri Anoop Nair, learned counsel for respondents No.2 to
12.
-----------------------------------------------------------------------------------------------------------------------------------
ORDER
(4.4.2017)
1. Award passed by the Central Government Industrial Tribunal-cum-Labour Court (hereinafter referred to as 'CGIT') on 01.08.2012 is being questioned by the employer.
2. The CGIT which was in seisin with the dispute in reference as to :
"Whether the action of the management of State Bank of India in terminating the services of the under-mentioned workmen with effect from the date(s) shown against their names and then not absorbing them in the permanent service of the Bank as per the provisions of the Memorandum of settlement dated 15-2-1985 was justified ? If not, to what relief the workmen are entitled to ?"
:: 2 ::
Writ Petition No.18849/20123. The dispute is answered in favour of respondents-
workmen.
4. The facts giving rise to raising of dispute briefly are that the differences arose with the termination of the workmen engaged on daily wages in various branches of the petitioner-
Bank. To subside the difference and with an object for the maintenance of industrial peace, settlement was arrived at between the petitioner-Management and respondent No.1 Association, representing the workmen on 15.2.1985 in the following terms :
"1. It is agreed that all those temporary employees who have put in an aggregate of 90 days attendance or more as on 30.10.1984 will be given a chance for consideration for permanent appointment, irrespective of the fact whether or not their names were originally sponsored by Employment Exchange. This exercise will be done only as a special case on one time basis.
2. It is further agreed that the temporary employee of overage, relaxation in the age will be given if he was found within the age limit prescribed for recruitment in subordinate cadre at the time of initial temporary appointment.
3. The workman covered by this settlement will not claim any back wages or benefits of their past services with the bank.
:: 3 ::
Writ Petition No.18849/2012
4. It is agreed that the above process of action will be completed by the Bank as early as possible, a review will be made at this office after 60 days of this settlement and Bank will file a progress report to this respect.
5. It is further agreed that all temporary vacancies arising after the settlement will be filled by those employees who has put in aggregate of 90 days attendance or more on the basis of Centre seniority at centers having 3 or less offices/branches and wherein offices/branches are more than 3 on the basis of office/branch seniority.
6. The parties will submit their report on Implementation on this settlement to the ALC(C), Jabalpur on or before 6th May 1985."
5. However, as the services of some of the workmen were terminated on the ground that they had failed to clear the interview, complaint was made to the Assistant Labour Commissioner (C), Jabalpur under Section 10 of Industrial Disputes Act, 1947. Since the conciliation failed, the matter was reported to the Central Government which, by its order dated 6.1.1988, refused to refer the dispute to CGIT on the ground that the petitioner-Bank has entered into a mutual agreement with the Union on 17.11.1987. The order was challenged before the High Court vide Misc. Petition No.1430/1988, wherein, by order dated 13.12.1989, the order passed by the :: 4 ::
Writ Petition No.18849/2012Central Government on 6.1.1988, was set aside with direction to refer the dispute to CGIT for adjudication. The Division Bench observed:
"6. In the present case, the disputed question was that whether the settlement dated 15-02-1985 reached between the Management and the petitioners, there was no provision for further selection or interview of the employees and, therefore, the management was not justified to terminate the services of some of the employees on the ground that they had failed to pass in the interview. This being the disputed question, the Central Government was not justified to pass the impugned order as the adjudication of this dispute would be the province of the industrial Tribunal and not the Central Government. This is so hold. Even in the case of Bombay Union of Journalists (supra) relied on by the learned counsel for the respondent. In these circumstances stated above. The petition has to be allowed."
6. Later on, by order passed in MCC No.83/1991, it was clarified that cases of all the petitioners were to be referred to the CGIT. Consequently, the Central Government vide order dated 22/23.4.1991 referred the dispute of 68 employees collectively to the CGIT for adjudication.
:: 5 ::
Writ Petition No.18849/20127. Before the CGIT, both the parties filed their statement of claim.
8. In a joint statement of claim, it was stated on behalf of workmen that the staff employed in the Bank are classified as
(a) Award Staff and (b) Non-Award Staff. The category of Award Staff is further divided into two cadres (based on relative pay scales) viz. (i) Sub-ordinate Staff and (ii) Non sub-ordinate Staff. The workmen concerned with the dispute were performing duties of the Sub-ordinate Staff with different designation, single or combined and the nature of work performed by these workmen is permanent, as there is no work of temporary or casual nature in the Bank. It was stated that the workmen were registered with the respective Employment Exchanges of their areas. That, they were duly called and interviewed at the time of initial employments. That, there existed vacancies on the date of settlement i.e. 15.2.1985. It was contended that agreeing to forgo the benefits in respect of past service, the consideration of immediate regular employment had mainly weighed and led to signing of settlement. It was contended that to deny the settlement :: 6 ::
Writ Petition No.18849/2012arrived at on 15.2.1985, the management took recourse to executive instructions (Exhibit W/3, W/4 and W/5) and contrary to the terms of settlement dated 15.2.1985, took recourse to the interview, which was not countenanced in the settlement and found all the workmen at whose instance the settlement was arrived at, as unsuitable. Pertinent it is, at this stage, to take note of specific averments made on behalf of the workmen vide statement of claim in Paragraph 4 and 8-
"4. That the names of the workmen are registered with the respective employment exchanges of their areas. They were duly called and interviewed at the time of initial employment. There were vacancies existing as on the date of issuance of the circular letter (Annexure-w.3) and of even thereafter. The vacancies were also existing as on the date of Settlement dated 15-02-85 (Annexure- W.2)."
...
8. That as a consequence of the above stated Bank's policy decision the workmen were given employment. In agreeing to forego the benefits in respect of the past service the consideration of immediate regular employment had mainly weighed and led to signing the Settlement (Ann,W.2)"
9. The petitioner-management besides their statement of claim that for appointment/regularizing the workmen on :: 7 ::
Writ Petition No.18849/2012permanent basis, the interview was implicit and that, the workmen having been found unsuitable in the selection process were not given the employment; have further given the parawise reply. In reply to Paragraph 4 and 8 of the statement of claim on behalf of workman, it was stated -
"Para 4 : That the contents of para 4 of the statement are denied for want of knowledge. Whether there were vacancies at the relevant time or not is wholly immaterial since there is no right of appointment and/or promotion- Appointment could only be made in accordance with recruitment rules which provide for selection process through interview and subject to eligibility conditions. It is not true that the applicants were interviewed at the time of their initial employment.
...
Para 8 : That the contents of para 8 of the statement are totally false to the knowledge of the alleged General Secretary Shri D.P.Tiwari. No one was given employment as a consequence of alleged Banks a Policy. There was in fact, no such policy of giving employment. Employment was given to those who were found suitable in the interview by the Selection Committee. It is denied that in lieu of foregoing past benefits that regular employment was given. Giving up the past benefits was one of the terms of the settlement dated 15-02-1985."
10. The petitioner-management while not disputing the settlement dated 15.2.1985, also adverted to few more :: 8 ::
Writ Petition No.18849/2012Bipartite Agreement arrived on 17.11.1987 (modified by subsequent agreement dated 16.7.1988), agreement dated 27.10.1988 and agreement dated 9.1.1991. As regard to the contention on behalf of the workmen that the introduction of interview as a mode for selection was dehors the stipulation contained in the settlement dated 15.2.1985, the petitioner-
management except making a statement at Paragraph 2 of the reply before CGIT that the interviews were scheduled on different dates during August, 1985 March-April, June 1986 and that the applicants were found unsuitable; therefore, their services were dispensed with, the petitioner-management did not tender any explanation regarding holding the interview.
11. It, however, appears from the contention in Paragraph 4 of the statement of claim filed before the CGIT that the petitioner-management took recourse to the recruitment rules while considering the employees for permanent appointment.
This stand gets substantiated at the time of hearing this petition.
12. The CGIT on the basis of the averments and the counter, framed three issues, viz.
:: 9 ::
Writ Petition No.18849/2012I. Whether the action of the management in not absorbing them in the permanent service of the Bank as per the settlement dated 15-2-1985 was justified ? II. Whether the action of the management in consequence in terminating the services of the workmen on dates as shown against their names was legal and justified ?
III. To what relief, all or any of the workmen are entitled ?
13. Respective parties led their evidence.
14. The CGIT found that the settlement dated 15.2.1985 was the criteria for giving a chance for consideration for permanent appointment in the Bank as a special case on one time basis (Paragraph 7 of the Award). On further finding which turns on Annexure MW/1 (which contained detail of the work done by respective workmen), the CGIT observed that certain workmen at Serial No.8, 11, 12, 14, 16, 39, 42, 43, 48, 49, 50, 51, 52 and 54 were shown to have put in less than 90 days attendance, but the management did not lead any evidence as to rest of workmen, who fulfilled the criteria, yet not selected.
The CGIT found that the report which was to be furnished as per clause 6 of the settlement dated 15.2.1985, was not filed.
It found :
:: 10 ::
Writ Petition No.18849/2012
9. .... The pleading of the management is vague and is not specific as to why they were not found suitable for the job. Annexure MW/1 of the management discloses that the workmen had not completed 240 days and therefore they were found unsuitable for the permanent absorption in service of the bank. This was not the criteria to reject the absorption as per settlement. There is no pleading of the management that what was the vacancies available at the time of alleged interview of the workmen. Moreover, the evidence of the management and Annexure MW/1 also do not disclose that any of the workmen was disqualified for want of vacancies. The learned counsel for the management submitted that the management witness has stated at para 27 that there were 100 vacancies. This appears to be afterthought, as there was no pleading of the management. Thus, the case and the evidence of the management clearly show that there is no case of the management as to why they were not suitable for permanent services of the Bank and thus, the management was not justified in declaring them unsuitable for the services of the Bank in the light of settlement arrived at between the management and the Union/workmen which is binding on them and the management had taken a ridiculous pleading in rejecting the claim of the workmen who had completed 90 days or more on or before 31.10.84 and appeared to be within age limit at the time of initial temporary appointment.
15. The CGIT found that even the chart prepared on the basis of interview (Ex. M/1 to M/1(g) reflected name of few workmen and not all.
16. Furthermore, the CGIT after analysing the evidence given by the management and the workman, found that except 14 :: 11 ::
Writ Petition No.18849/2012persons (as noted supra), other workmen were entitled to be considered for permanent. The Tribunal observed :-
11. On the other hand, the Union/workmen has adduced evidence in the case. The Union has examined 15 witnesses in support of the case who were cross examined by the management. Other evidence of the witnesses filed by the Union have not been cross-examined, as those witnesses did not turn up. The witnesses examined in the case are 1. Shri Mandharilal Chakravarty, 2. Shri Ram Gopal Pandey,
3. Vijay Shankar Paroha, 4. Ram Niwas Kori, 5.
Ramanandan Pd. Mishra, 6. Kishore Pd. Dwivedi, 7. Shanker Lal Dubey, 8. Devendra Kumar Shrivastava,
9. Ramesh Das Bairagi, 10. Bharat Pd. Shrivas, 11. Brij Mohan Mishra, 12. Sanjay Kumar Agrawal, 13. Gulab Singh Yadav, 14. Rajendra Kumar Tiwari and
15. Rajkumar Rajak. They have supported the case of the Union. They have stated in their evidence that they were engaged as casual labourers on daily wages. They have admitted the period of work done by them as has been given by the management. This shows that the management as has given the period of work done by these workmen in MW/1 alongwith his Written Statement is admitted by the Union Witnesses. Thus it is clear that except 14 workmen as has been discussed earlier, others had completed in aggregate of 90 days attendance or more as on 31.10.1984 and were entitled to be considered for permanent appointment/absorption in the Bank in accordance with the settlement if other condition of the settlement was fulfilled.
17. The Tribunal, accordingly, held that the action of the management in not absorbing the workmen except 14 workmen in permanent service of the Bank in term of :: 12 ::
Writ Petition No.18849/2012settlement dated 15.2.1985, was not justified. Consequently, answered issues no.(ii) and (iii) in the following terms:
"17. Issue No.II.
The evidence of the management witness Shri D.P. Tamhane shows that the workmen had not worked 240 days in twelve calendar months preceding the date of termination as indicated in the reference order. This shows that their services shall not be continuous for a period of one year as has been required under Section 25(B)(2) of the Act, 1947. This shows that there is no violation of the provision of Section 25F of the Act of 1947. However the termination of the workmen except 14 workmen as has been discussed above in violation of the Settlement is illegal. Accordingly, the issue is answered.
18. It appears from the pleading of the Union/workmen that there is no pleading that after termination from services they were not in gainful employment. As such, they are not entitled to any back wages.
19. Issue No.III On the basis of the discussion made above, it is clear that the action of the management in not absorbing the workmen except 14 workmen as has been discussed above in the permanent service of the Bank as per settlement dated 15-2-1985 is not legal and justified. It is pointed out by the counsel of the Union that some of the workmen have been taken in the permanent employment in the Bank subsequently and one of the workman has crossed the age of superannuation. Accordingly the management is directed to reinstate them and thereafter absorbed these workmen in permanent cadre of sub-staff except 14 workmen as has been named above. The workmen, who are already in employment in the Bank will not be effected from this award. The workmen, if any, who have crossed the age of superannuation are to be paid Rupees two Lacs :: 13 ::
Writ Petition No.18849/2012(Rs.2,00,000/-) each as compensation by the management. The management is directed to comply within two months from the date of award.
Accordingly the reference in answered."
18. Elaborate submissions were made on behalf of respective parties.
19. Considered the rival submissions and perused the material pleadings and the documents referred to.
20. These findings, as apparent therefrom, are based on the material evidence on record, which the CGIT analyzed it impeccably as would give any wing to the contention raised on behalf of the petitioner that the CGIT grossly erred in appreciating the issues properly. Had that been so, the CGIT could not have excluded 14 (out of 68) applicants from the claim. The CGIT besides laying emphasis on the terms of settlement arrived at on 15.02.1985 that it did not contain an interview clause, also found that the petitioner had not brought on record the report as was to be submitted to the Assistant Labour Commissioner, as per Clause 6 of this settlement, this, as rightly observed by the CGIT, marred the transparency and the right approach by the petitioner-management which get established when one reads the answer given by the :: 14 ::
Writ Petition No.18849/2012
management witness in cross-examination, few of these are extracted below which are self explanatory :
16- isij ua- 9@2 dks eSa Lohdkj djrk gw¡ tks cSad dk Circular gS ftls W/1 vafdr fd;k tkrk gSA bl Circular ds vk/kkj ij ;g funsZf'kr fd;k x;k Fkk ¼Branches dks½ fd Casual o Daily Rated Workers dks 90 fnu ugha j[kuk gS rFkk ftlus 90 fnu dj fy;k gS] mls iqu% ugha j[kuk gSA 17- gekjs ;gka cSad esa Award staff, Supervisory ,oa Sub- ordinate staff rhu Category gSA Sub-ordinate staff dks Sub-staff dgrs gSA 18- Sub-staff tks dke djrs gS og Permanent o perennial nature ds dke gSA 19- Bank esa Temporary, Daily rated ;k Casual bUgh Sub-staff ds dke ds fy;s j[krs gSA
---
22- isij ua- 8@5 ls 8@6 tks settlement fnukad 15-2-85 dk gS tks Management o S.B.I Workers Union ds chp gqvk Fkk bls eSa igpkurk gwW A bls izn'kZ w@2 vafdr fd;k tkrk gSA worker dh vksj ls ;g ekax Fkk fd mUgsa fu;fer dj fn;k tkosA 23- Bank dk ;g Policy Decision ugha gqvk Fkk fd tks Hkh Casual Employees ;k daily rated 90 fnu dk dk;Z dj fy;k gS mls ukSdjh esa j[k fy;k tkosA Temporary Employees dh fu;qfDr gksrh gS tks fu;ekuqlkj gksrh gS ;s Regular Employees dh rjg osru ikrs gSA tks ml le; FkkA 24- ;s ckr ;gh ugha gS fd cSad us ;s LOkhdkj fd;k Fkk fd tks 90 fnuksa rd ,d dSys.Mj o"kZ esa dke fd;k gks rFkk Temporary service esa gks rks mUgsa ukSdjh dk izLrko fn;k tkosxkA :: 15 ::Writ Petition No.18849/2012
---
26- ;g gks ldrk gS fd 1985 ds settlement w/2 esa ,slk provision Fkk fd bu workers dks interview ds fy, cqyk;k tkosxk rFkk p;u gksus ij service dk offer fn;k tkosxkA
---
29- 90 ls vf/kd yksxksa dh fu;qfDr dh xbZ FkhA interview esa mUgha yksxksa dks cqyk;k x;k Fkk tks 90 fnu ;k mlls vf/kd fnu dke fd;k gks rFkk f'kdk;r u gksA
---
39- eSa ugha dg ldrk gwW fd settlement esa tks Clause 6 gS mldh dk;Zokgh cSad us dh Fkh vFkok ughaA 40- tks esjs 'kiFk i= esa MW/1 gS oks esjs lkeus compile ugha gqqvk gSA 41- eSus tks vius 'kiFk i= esa fy[kk gS fd nkosnkj ukSdjh ds fy;s ;ksX; ugha Fks os eSus M/1 tks vkt nkf[ky fd;k gS rFkk MW/1 esa vk/kkj ij dgk gSA
21. Perusal of these answers in backdrop of other material evidence on record and the issue involved leaves no iota of doubt that the CGIT is justified in observing that the management has failed to adhere to the stipulations in the settlement dated 15.2.1985 and the conclusion that the workman (except 14) were not considered, cannot be faulted with.
:: 16 ::
Writ Petition No.18849/201222. Much has been argued about the aspect that the settlement arrived at clearly mentioned that it is agreed that all those temporary employees who have put in an aggregate of 90 days attendance or more as on 31.10.1984 will be given chance for consideration for permanent appointment. The emphasis put-forth by learned counsel for the petitioner is on the expression "consideration" within its fold, it is contended, comes the interview. It is submitted that with limited number of posts and the contenders being for far more in number, incumbent it was to have a process to eliminate those who are not suitable. In principle, the petitioner-management may be justified in their stand that unless a parameter having the element of elimination is adhered to, it is difficult to select from large number of prospective candidates. However, in a given case, as the present one where the parameters are set in the form of settlement with the stipulation that the incumbent should have aggregate of 90 days attendance or more as on 31.10.1984; were within the age limit prescribed for recruitment in sub-ordinate cadre at the time of initial temporary appointment. These criteria having been prescribed, :: 17 ::
Writ Petition No.18849/2012
coupled with the fact that it was one time settlement and that the list was prepared in accordance with the number of days of work by respective workmen i.e. the workmen having more number of days were placed senior, there is no other stipulation in the settlement dated 15.2.1985. The element of interview to adjudge individual merit is, as apparent from the statement of claim and the evidence led, was borrowed from the regular recruitment rules, which is not warranted. Even then, the CGIT went further to explore as whether the management has followed any set pattern in respect of the applicant-workmen. To its dismay, it found that the record of 14 ineligible workmen was brought; however, no record in respect of other workmen was commended at before the CGIT which led the CGIT to record the conclusion that these claimants (except 14) though eligible, were wrongly deprived of the benefit of permanent absorption.
23. The conclusion arrived at by the CGIT when is tested on the anvil of above analysis and the cogent material evidence on record, both documentary and oral, cannot be faulted with as would warrant any interference.
:: 18 ::
Writ Petition No.18849/201224. Further contention that few workmen during pendency of the matter before CGIT sought leave for withdrawal from the proceedings yet the CGIT went on to pass the Award, is taken note of and rejected at the outset. No order on the application has been commended at of permitting these workmen to withdraw from the proceedings. Nor these workmen have come forward against non-consideration of their application. For these reasons, the Award does not get vitiated. The Award also does not get vitiated on the anvil of the decision in Secretary, State of Karnataka v. Umadevi (2006) 4 SCC 1, which the petitioner has put in service. As the matter in hand relates to the industrial dispute arising under the Act of 1947, which was not the issue in Uma Devi (supra). No other grounds are raised.
25. Consequently, petition fails and is dismissed. No costs.
(SANJAY YADAV) JUDGE vinod