Bombay High Court
Anz Grindlays Bank Ltd. vs Grindlays Bank Employees Union And Anr. on 5 February, 1998
Equivalent citations: (2000)IIILLJ629BOM
Author: R.M. Lodha
Bench: R.M. Lodha
JUDGMENT R.M. Lodha, J.
1. The award passed by the Central Government Industrial Tribunal No. 2, Mumbai on June 30, 1997 adjudicating two references namely Reference No. CGIT-2/47 of 1993 and Reference No. CGIT-2/26 of 1995 is under challenge in this writ petition filed under Article 226 of the Constitution of India at the instance of the petitioner ANZ Grindlays Bank Ltd.
2. ANZ Grindlays Bank Ltd. (for short 'the Bank') is a Banking Company having its head office in London and various Branches in India including a dozen of them in the City of Bombay. The respondent No. 1 Grindlays Bank Employees Union (for short "the Union") is a recognised union representing the workmen employed in the Bank in India. The dispute relates to reinstatement and regularisation of various employees in the sub staff cadre of the Bank. According to the Union, the Bank in violation of the various awards governing the recruitment and employment of employees in the Bank resorted to engage various persons in its branches at Bombay as temporary employees and denied them the conditions as laid down in the awards and settlements since the year 1988. This act on the part of the Bank gave rise to the demand by the Union that it should stop such unfair labour practice and steps be taken to regularise the employment of all temporary employees by absorbing them as permanent employees and pay them all wages in conformity with the conditions laid down in the awards and settlements governing such services in the bank. The Union raised the industrial dispute by writing letters to the Bank on October 9, 1991, October 22, 1991 and June 5, 1992. Before the Conciliation Officer the Bank agreed to pay to the temporary employees their wages on par with the permanent employees during their employment but the industrial dispute for regularisation of service conditions of concerned workmen (sub-staff) ended in failure on August 19, 1992 and the Conciliation Officer submitted his failure report. The Central Government vide its order dated May 15, 1993 referred the industrial dispute to the Central Government Industrial Tribunal No. 2, Bombay to adjudicate: (i) "Whether the demand of the Grindlays Bank Employees Union for regularising 43 temporary workmen as mentioned in Annexure "A" was justified and if so, to what relief the workmen are entitled to" (ii) "Whether the action of the management of ANZ Grindlays Bank in terminating the services of the workmen indicated in Annexure "B" was legal and justified and if not, to what relief the workmen were entitled to?" and (iii) "Whether the demand of the Grindlays Bank Employees Union for their regularisaton in Bank's service was justified?". It appears that the Bank terminated the services of all the 46 workmen during the pendency of aforesaid conciliation proceedings and in this regard the union desired the Bank to reinstate all such employees whose services were terminated. The industrial dispute relating to termination of all 46 employees was raised and in that regard too the conciliation talks failed and accordingly the conciliation officer submitted his failure report and ultimately the Central Government referred the industrial dispute, viz. "Whether the action of the management of ANZ Grindlays Bank in terminating the services of the workmen mentioned therein without adopting any procedure was legal and justified and if not to what relief the workmen were entitled to". The first reference is Reference No. CGIT-2/47 of 1993 and the second reference is Reference No. CGIT-2/26 of 1995. In both the references the Union filed statement of claims which were contested by the Bank by filing written statements. According to the case of the union all 46 employees who were temporarily engaged by the Bank had right to be regularised having worked for more than 240 days and the Bank was obliged to provide them service conditions in terms of various awards, viz. Shastri Award, Desai Award and bipartite settlements, by not regularising the said 46 employees and not according them the status of permanent employees the Bank indulged in unfair labour practices; all the 46 employees had worked for years together and in any case more than 240 days in the year immediately preceding the date of termination. The Union in its statement of claim set out the details of the days of employment of all concerned employees. The case of the Union in the statement of claim filed in the second reference was that by terminating the services of 29 workmen without following any procedure contemplated under law, the termination of the said 29 employees was bad in law and liable to be set aside. The Bank, on the other hand, disputed the correctness of the facts stated by the Union in their statement of claims and set up the plea that the concerned workmen were employed temporarily in view of temporary increase in workload and the said employees were paid wages accordingly. Most of them have not completed 240 days and that in the year 1992 the Bank identified 18 vacancies for sub staff and with a view to fill in those vacancies, an advertisement was issued on August 26, 1992. In response to the said advertisement, the concerned workmen as well as the other persons applied and ultimately 14 temporary employees out of the 46 concerned employees were given appointment in sub staff on temporary basis. The Bank in the written statement submitted that they had acted in accordance with the bipartite settlements and the various awards governing the employment in the Bank. The Bank also took a technical plea that second reference made by the Central Government was not competent on the face of the earlier industrial dispute already referred by it for adjudication. The Union as well as the Bank led oral and documentary evidence and the Industrial Court after recording the evidence and hearing the parties adjudicated both the references together and held that the demand of the Union for regularisation of 29 temporary workmen from Annexure "A" was justified and management was granted six months time to regularise their services. The Tribunal also held that the action of the Bank in terminating the services of the workmen mentioned in Annexure "B" was not legal and justified and accordingly directed the management to reinstate the 7 workmen mentioned in Annexure "B" in service from the date of their termination and pay them back wages. The Tribunal also directed that the workmen shown in Annexure "B" were entitled to regularisation and that should be done by the Bank within six months. It was held by the Tribunal that the action of the Bank in terminating the services of 29 workmen mentioned in Schedule of Reference No. CGIT-2/26 of 1995 was not legal and justified and management was directed to reinstate them in service from the date of their termination and pay them back wages. 14 employees who were already absorbed in the year 1992 were held not to be entitled to any reliefs.
3. On January 5, 1998 when the matter came up for admission, I called for record and proceedings and the writ petition was ordered to be posted after receipt of the record and proceedings. At the request of the learned counsel for the parties, the matter was heard finally at admission stage.
4. Mr. Rele, the learned counsel for the petitioner strenuously urged that most of the concerned workmen had not completed 240 days of service in the Bank and, therefore, the Tribunal was wrong in holding that their termination was bad in law being in violation of Section 25F of the Industrial Disputes Act, 1947. Mr. Rele would urge that the evidence led by the Union did not prove that the concerned workmen had completed 240 days. He would submit that workmen did not appear in witness box and, therefore, as regards them there was no evidence to show that they had worked for 240 days with the Bank. Mr. Rele would also urge that even if it be assumed that the concerned workmen had completed 240 days, they could not claim permanency as a matter of right and no direction for making those employees permanent sub-Staff of the Bank could have been ordered when the posts were not vacant. According to Mr. Rele, the Industrial Court had not recorded any finding that all the posts for which the order has been made for making the concerned workmen permanent are vacant. He thus submitted that the direction given in the impugned award making the concerned workmen permanent without finding that such permanent posts were vacant could not be sustained. In support of his contention Mr. Rele relied upon the decision of the Apex Court in Catering Cleaners of Southern Railways v. Chief Commercial Supdt. Southern Railway, , Surinder Singh Jamval (Dr.) v. The State of Jammu & Kashmir and Ors. , State of Himachal Pradesh v. Ashwani Kumar and Ors. and a Division Bench judgment of the Calcutta High Court in Samara Das & Superintendent, Durgapur Sub- Divisional Hospital and Ors. 1997 I LLN 861. Mr. Rele contended that recruitment of the employees in substaff are governed by Recruitment Rules framed by the Bank and in accord with the said Recruitment Rules the concerned workmen are not eligible and, therefore, they could not have been ordered to be made permanent. It is also contended by Mr. Rele that in the year 1992 notice was issued for recruitment of some employees in sub-staff and pursuant thereto 38 persons out of the concerned workmen applied and appeared for selection and ultimately 14 persons from the concerned workmen were selected and, therefore, the remaining persons who appeared in the said selection process and were not selected, could not claim any permanency. The learned counsel for the petitioner lastly urged that the second reference made by the Central Government was not competent and maintainable being destructive of the first reference and, therefore, the award deserves to be set aside.
5. In response to the aforesaid contentions, Mr. K.K. Singhvi, the learned senior counsel appearing for the Union, strongly defended the award and urged that the Industrial Tribunal has considered the entire material available on record threadbare and on proper consideration of the entire available material found that the Bank withheld material documents and also did not maintain and produce the requisite register of attendance, employment, etc. as required under law and that there were more than 70 vacancies in sub-staff of the Bank at Bombay and, therefore, the order directing the petitioner to make the concerned employees permanent and regularise their employment cannot be said to suffer from any infirmity on facts or in law. Mr. Singhvi, the learned senior counsel, also urged that the Union had led sufficient evidence to establish that the concerned workmen had completed more than 240 days in the year preceding the date of their termination and that the evidence led by the Bank was rightly not found reliable by the Tribunal since the relevant documents which could have thrown light on this aspect were not produced. Mr. Singhvi extensively referred to the available material and the findings recorded by the Tribunal to show that the said findings are sustainable on the available record and that no case for interference is made out in extraordinary jurisdiction under Article 226 of the Constitution of India. Mr. Singhvi relied upon the decision of the Apex Court in Food Corporation of India Workers' Union v. Food Corporation of India and Anr. .
6. In the Statement of claim filed by the Union the details about employment of each of the concerned employee has been given which reads thus:
(i) Ganesh Y. Bane:
He was employed at the Bank's branch at D.N. Road, Bombay-1 from February 1, 1989 to December 31, 1989 and after a break of one month again employed from February 1, 1990 to April 30, 1990 and June 1, 1990 to December 5, 1990. After a break of five months he was employed at the Bank's branch at Mint Road, Bombay-1 from May 1, 1991 to December 31, 1991 and transferred to D.N.. Road Branch from January 11, 1992 where he worked till August 13, 1992, and was issued oral order not to report to work from August 14, 1992. It could be seen that from February 1, 1989 to August 12, 1992 he has worked in. all for 1095 days and over a period of 12 months he worked beyond 240 days. During the period February 1, 1989 to December 31, 1989 he had worked for 333 days; during the period February 1, 1990 to December 5, 1990 he worked for 303 days and during the period May 1, 1991 to December 31, 1991 he worked for 246 days. During the entire period of service he performed the duties of Peon and in addition he performed the duties of Daftary from May 1, 1991 to December 31, 1991 in the Centralised Stationery Department at Mint Road Branch of the Bank.
(ii) Madhukar P. Mhatre;
He was employed at the Bank's branch at D.N. Road, Bombay-1 from September 1, 1988 to December 31, 1990 with break in March 1989, another break from December 21, 1989 to January 31, 1990 and another break in November 1990. His employment continued at the Mint Road Branch from January 1, 1992 to August 13, 1992 whereafter his services were orally terminated with effect from August 14, 1992. During the period from September 1, 1988 to August 18, 1992 he worked in all for 975 days. He completed 240 days service over a period of 12 months since he worked continuously for 334 days during the period September 1, 1988 to August 30,1989, again continuously worked for 323 days during the period September 1, 1989 to August 31, 1990 and further continuously worked for 318 days from September 1, 1990 to August 13, 1992. His services were terminated by oral order with effect from August 14, 1992. During the entire period of service he performed the duties of Cleaner i.e. Sweeping, Cleaning, Washing of the floors of the bank's premises and dusting and cleaning the furniture and fixtures within the Bank's premises.
(iii) G.K. Solanki:
He was employed in the D.N. Road Branch of the bank from April 1, 1988 to August 31, 1990 and worked in all for 488 days with intermittent breaks from October 1, 1988 to October 31, 1988, January 1, 1989 to August 1, 1989, October 1, 1989 to October 31, 1989 and from January 1, 1990 to March 31, 1990. During the period of his employment during the 12 months period from April 1, 1988 to March 31, 1989 he worked for 303 days and for another lap of 12 months period from September 1, 1989 to August 31, 1990 he continuously worked for 244 days. His services were terminated by oral order given on March 31, 1989 asking him not to report to work from September 1, 1990. During the entire period of service he performed the duties of Sweeper i.e. cleaning of toilets, staircases and outer premises of the branch.
(iv) S. V. Parmar:
He was employed in the D.N. Road Branch of the Bank from April 1, 1989 to March 31, 1990 with a break of two months in November and December 1989. He worked continuously for 304 days during the period of employment and his services were terminated effective from April 1, 1990 by the oral order issued by the bank management. During the entire period of his services he performed the duties of Cleaner and shared the duties with G.K. Solanki, mentioned above.
(v) M.P. Jadhav:
He was employed at the Bank's D.N. Road Branch as a Watchman continuously for 334 days during the period April 1, 1989 to February 28, 1990 and effective from March 1, 1990 his services were terminated by oral order issued by his superior.
(vi) Ashok M. Barot:
He was employed in the D.N. Road Branch of the Bank from April 1, 1989 to December31, 1990 for 178 days with break as a Peon-cum-Pantry Boy and from June 25, 1990 to November 11, 1990 he was employed as a watchman in the M.G. Road Branch and after a break was again employed as Peon-cum-Pantry Boy in the D.N. Road Branch from January 1, 1991 to August 13, 1992 continuously working for 890 days. By oral order of the bank his services were terminated effective from August 14, 1992.
(vii) Anant (alias Anand) H. Barve;
He was employed as a Peon-cum-Cleaner in the Bank's Merchant Banking Department at Mint Road Branch, Bombay-1 from September 1, 1990 to August 13, 1992 and he worked continuously for 712 days and his services were terminated effective from August 14, 1993 by the oral order of the management.
(viii) Haresh K. Poojary:
He was employed as a Peon-cum-Cleaner in the Merchant Banking Department and in the Visa Card Division at the Bank's Mint Road Branch from August 14, 1991 to August 12, 1992 and continuously worked for 500 days and effective from August 14, 1992 his services were terminated by oral order given by the management.
(ix) Rajendra Woman Mungekar:
He was employed as a Peon-cum-Daftary in the Merchant Banking Department at the Mint Road Branch of the bank from July 23, 1990 to August 13, 1992 and worked continuously for 751 days and his services were terminated effective from August 14, 1992 by the oral order issued by the management.
(x) Vishwanathan:
He was employed as Peon-cum-Daftary at the S.G. Marg Branch, Bombay-2 from January 31, 1988 to August 13, 1992 and continuously worked for 1289 days, whereafter his services were abruptly terminated by the Bank effective from August 14, 1992.
(xi) Nihar Babuji Misrilal:
He was employed as a Peon in the office of the Chief Manager, Retail Banking at the Mint Road Branch of the Bank from February 2, 1989 to June 19, 1991 and thereafter he was transferred to D.N, Road branch where he worked in the Invest care Department from June 2, 1991 to August 13, 1992. Thus he worked continuously for 1269 days over a period of 3 years and his services were terminated by oral order effective from August 14, 1992.
(xii) Chetan Barot:
He was employed as a Peon at the Mint Road branch of the Bank from December 1, 1990 to March 31, 1992 and continuously worked for 486 days over a period of 16 months, whereafter effective from April 1, 1992 his services were terminated by oral order issued by the management.
(xiii) Krishna Bahadur Thapa:
He was employed as a Cash Peon-cum-Daftary in the B.D. Road Branch of the bank from November 11, 1992 to December 21, 1992 and during this period of 25 months continuously worked for 811 days, whereafter his services were terminated by the Bank effective from the close of office hours on December 31, 1992.
(xiv) Balwant Dattaji Patil:
He was employed as a Peon in the M.G. Road Branch from October 1, 1990 to December 31, 1990 and transferred to D.N. Road branch where he worked as a Peon from January 1, 1991 to March 31, 1991 and again transferred to Mint Road branch where he worked as Peon-cum-Cleaner from April 1, 1991 to December 31, 1991. After a break of 12 days he was employed as a Peon at the Bank's M.G. Road Branch from January 13, 1992 to March 13, 1992 whereafter he was transferred to Mint Road Branch, Centralised Stationary Department from March 14, 1992 to August 13, 1992 as Peon-cum-Cleaner, whereafter effective from August 14, 1992 his services were terminated. During the said period of two years he continuously worked for 670 days.
(xv) S.S. Pawar:
He worked in the Byculla Branch of the Bank from September 1, 1987 to December 31, 1992 as Peon-cum-Cleaner continuously for 1947 days and his services were terminated after close of office hours on December 31, 1992.
(xvi) Ravindra P. Ratkwadkar:
He worked in the Bank's M.G. Road branch as Peon-cum-Cleaner from October 16, 1989 to July 31, 1990 and after a break of one month worked in the same capacity in the same branch from September 1, 1990 to November 3, 1990. During the period of nine months and 15 days he has worked continuously for 320 days but his services were terminated effective from November 4, 1990.
(xvii) Vikas Dhanaji Chirnekar:
He worked in the M.G. Road Branch of the Bank as a Peon from May 2, 1988 to October 31, 1988, from December 7, 1988 to July 31, 1989, from September 1, 1989 to June 30, 1990, from September 1, 1990 to September 30, 1990 and from November 1, 1990 to November 30, 1990. Thus during 30 months period he worked for 783 days, which includes 328 days continuous working during the period of 12 months from May 2, 1988 to April 30, 1989 and again continuous working for 334 days over a period of 12 months from May 1, 1989 to April 30, 1990. His services were terminated by the bank effective from December 1, 1990.
(xviii) Eknath S. Parab:
He worked as a Peon in the Bank's M.G. Road branch from August 16, 1989 to December 15, 1989, from January 1, 1990 to April 20, 1990, from May 2, 1990 to June 30, 1990 and from August 1, 1990 to March 6, 1991. During this entire period of 19 months he continuously worked for 517 days, which includes 300 days continuous working over a period of 12 months from August 16, 1989 to June 30, 1990 and again 278 continuous working for the period May 2, 1990 to March 6, 1991. His services were terminated effective from March 7, 1991.
(xix) M. K. Waghela:
He worked as a Sweeper in the Bank's M.G. Road branch continuously for 607 days over a period of 20 months from January 25, 1989 to August 22, 1990 and his services were terminated effective from August 23, 1990.
(xx) P.P. Waghela:
He was employed as a Sweeper in the M.G. Road branch of the Bank from December 6, 1988 to December 31, 1989 and from March 1, 1990 to April 4, 1991. He worked continuously for 791 days over a period of 27 months and his services were terminated by the Bank effective from April 5, 1991.
(xxi) Dilip S. Mane:
He was employed as a Peon in the Bank's M.G. Road branch from October 16, 1989 to June 30, 1990 and after a break of one month he was continued in employment from August 18, 1990 to September 22, 1990 and again after few days break he was continued in the employment from October 1, 1990 to November 10, 1990. Thus, during the period from October 16, 1989 to November 10, 1990 he worked in all for 340 days, out of which during the 12 months from October 16, 1989 to September 22, 1990 he worked for 299 days. On oral order of the Bank his services were terminated effective from November 11, 1990.
(xxii) Ankush S. Mayekar:
He was employed as a Peon in the M.G. Road branch of the bank for 493 days during the periods from September 10, 1989 to June 30, 1990, from August 1, 1990 to November 30, 1990 and from January 3, 1991 to March 10, 1991. During the 12 months from September 10, 1989 to August 10, 1990 he worked continuously for 394 days. His services were terminated effective from March 11, 1991.
(xxiii) Prashant K. Chandane:
He was employed as a Peon in the M.G. Road branch of the Bank from October 16, 1989 to April 30, 1990 and from May 2, 1990 to November 3, 1990. In all he worked for 383 days continuously and during 12 months from October 16, 1989 to August 31, 1990 he worked for 318 days and his services were terminated with effect from November 4, 1990.
(xxiv) Ashok K. Kanchan:
He worked in the Bank's branch at M.G. Road for 704 days from April 1, 1989 to July 31, 1990 and from August 6, 1990 to March 10, 1991. During the 8 months from April 1, 1989 to November 30, 1989 he worked for 244 days and during the year 1.990 he worked for 365 days. His services were terminated by the bank effective from March 11, 1991.
(xxv) Hemchandra S. Sawant:
He was employed as a Peon in the Bank's branch at M.G. Road continuously for 1027 days from November 26, 1989 to August 13, 1992 and his services were terminated by the bank effective from August 14, 1992.
(xxvi) Ramprasad K. Sharma:
He was employed as Peon-cum-Watchman in the M.G. Road branch of the Bank for 535 days with breaks from November 1, 1988 to March 31, 1991 and from April 1, 1991 to August 13, 1992 he again worked for 500 days. Over a period of 9 months in the year 1991 he worked for 275 days and during the 12 months prior to his termination of services he worked continuously for 365 days.
(xxvii) R.G. Waghela:
He was employed as a Sweeper in the Bank's branch at M.G. Road continuously for 338 days from March 7, 1989 to February 7, 1990 and his services were terminated with effect from February 8, 1990.
7. The said statement clearly indicates that all the concerned workmen had worked for 240 days and rather much more in the year preceding their termination. To prove this fact the Union led the evidence of Shri B.N. Subramanian and most of the concerned workmen barring 9 such employees and also few bank employees. The Union relied upon the letter dated June 5, 1992 sent by it to the Assistant Labour Commissioner annexed with which was Annexure "A" containing all facts and details with regard to concerned temporary employees who had completed 240 days service in the Bank and the period during which the concerned employees remained in service of the Bank. The Union also relied upon the letter written by the Bank on September 6, 1993, wherein according to the Union, the Bank admitted that the concerned employees had worked for more than 240 days. The Union also made an application before the Industrial Tribunal calling upon the Bank to produce the documents to show the date of the appointment of each of the concerned workmen, the register of attendance as maintained by them, wages paid to the concerned workmen during their employment. On the other hand, the Bank in support of its case led evidence of Shri. Chawathe, Shri Jadeja, Shri Shete, Shri Jairam, Shri Mario Fernandes and Shri Padmanabhan. The Bank also produced vouchers showing the payments made to the concerned employees. Thus, the Bank by this evidence sought to establish that none of the concerned employees worked for more than 240 days or more in the employment of the Bank.
8. The detailed statement of the employment of the concerned employees given in the statement of claim is duly proved by the evidence of Shri P.N. Subramanian and most of the concerned employees who have in unequivocal terms stated that they have worked for more than 240 days preceding the date of termination. As a matter of fact the details of the period during which they remained in the employment of the Bank have been fully furnished. Even prior to the statement of claim during the conciliation proceedings, the Unions sent a letter to the Conciliation Officer on June 5, 1992 wherein it annexed Annexure "A" setting out the details of the period during which the concerned employees remained in employment with the Bank. The Bank did not send any reply to the letter submitted by the Union before the Conciliation Officer on June 5, 1992. The learned counsel for Petitioner sought to draw much capital out of the fact that Mr. Subramanian had no personal knowledge about the fact that each of the concerned employees had worked for 240 days or more. According to Mr. Rele, Mr., Subramanian retired in the year 1988 and he (Mr. Subramanian) started gathering information thereafter but he did not produce documents on the basis of which such information was gathered. Mr. Rele would, thus, submit that the evidence of Mr. Subramanian is no evidence in the eye of law. The argument of Mr. Rele is devoid of any substance. It may be observed, as held by Apex Court in Food Corporation of India (supra), that it is not necessary, that there should be 'evidence' as per the Evidence Act to prove the facts before the Tribunal because Tribunal is not a Court. On that touchstone the deposition of Mr. Subramanian in the form of his Affidavit cannot be ignored. Moreover, the petitioner is the employer - a banking institution and it is also a shop and commercial establishment under the Bombay Shops and Establishments Act and the Rules framed thereunder. It is required to maintain the requisite register of employment under the law. It was for this reason that the Bank was called upon to produce relevant documents, namely, the documents showing the date of appointment of the concerned employees, the period of their attendance and the wages paid to them. The Bank did not produce the said documents and the documents which were produced by the Bank along with Exhibit-9 were not the documents which they were called upon to produce. The Bank - multinational bank -withheld the best available evidence which if produced could have thrown clear light about the exact period of employment of each of the concerned employees; omission on the part of the Bank to produce crucial primary documents justify adverse inference against it. It cannot be believed neither can it be accepted that an establishment like bank would not maintain documents and the registers relating to employees - temporary or permanent which may show the date of the appointment of such employees, the period of their attendance and the exact wages paid to them from time to time. The Bank where money matters would not employ any person without any record be it a date of appointment, attendance or payment of wages. In this background withholding of these important documents clearly shows that the Bank did not disclose true and correct facts before the Industrial Tribunal relating to the period of employment of the concerned workmen. The Bank solely relied upon the oral deposition of few of its witnesses and some vouchers. The Tribunal did not believe the oral testimony of these witnesses for more than one reason, namely: (1) the necessary and relevant documents as already indicated above were not produced by the Bank (ii) these witnesses while referring to the working days of the workmen did not take into consideration the Saturdays, Sundays and holidays though admittedly these employees were engaged on monthly basis. The vouchers produced by the Bank were not believed by the Tribunal on the ground that they were loose and at random taken out from bundles and further in the said vouchers the payment was shown to have been made to the concerned employees not under Salary account but sundry account. Obviously from such loose vouchers which were produced by the Bank, the exact number of days during which the concerned employees worked could not be found out. The very conduct of the Bank in not maintaining the requisite registers under law and not producing the relevant documents makes its stand doubtful and suspicious about the exact number of days during which the concerned employees worked. Since the Bank did not produce the relevant documents and register which could have shown the exact period during which the concerned employees worked, the Tribunal rightly drew adverse inference against the Bank for non-production of the requisite record and documents. Both Mr. Rele and Mr. Singhvi, referred to the material available on record extensively on this aspect of the matter and in my view for the reasons aforestated and the detailed reasons given by the Tribunal, the finding recorded by the Tribunal that the concerned employees had worked for more than 240 days in the year preceding their date of termination cannot be faulted. The finding of the Tribunal is based on the available material and cannot be said to be vitiated by any error of law or fact. Nor can it be said that the Tribunal considered this aspect with wrong approach or that the finding of the Tribunal is vitiated by any extraneous or erroneous consideration. This Court while sitting in writ jurisdiction under Article 226 of the Constitution of India does not sit as an appellate forum over the findings recorded by the Tribunal but the judicial review of such findings recorded by the Tribunal is confined to the manner in which the conclusions have been arrived at and not their correctness. The Tribunal has considered at length the "material" placed by both the parties and on weighing the probabilities, the material placed by the Union was found acceptable which does not call for any interference under Article 226. I do not find any merit in the contention of Mr. Rele that as regards the nine employees who did not enter the witness box, there was no reliable evidence to show that they completed more than 240 days. For the nine concerned workmen as well who did not enter the witness box the material placed by the Union is sufficient to establish that they had worked for 240 days preceding the date of their termination particularly when the Bank did not produce the requisite record regarding them. The evidence of Mr. P.M. Subramanian, the documentary evidence Exhibit 17-M (the letter written by the Union to the Conciliation Officer with which Annexure "A" was annexed) and the fact that no reply was submitted by the Bank to this letter and the letter written by the Bank dated September 6, 1993 also lead to inference that the concerned employees including nine workmen who did not examine themselves had completed 240 days. Even it the letter dated September 6, 1993 written by the Bank to the Government of India is not treated as clear admission on the part of the Bank that the concerned workmen had completed 240 days, the contents thereof are clearly indicative of the fact that the Bank did not seriously dispute that the concerned workmen regarding whom reference has been made by the Central Government had completed 240 days. In this background of facts the finding recorded by the Tribunal that the concerned workmen completed 240 days in the year preceding their termination cannot be said to suffer from any infirmity. Admittedly, there was breach of Section 25F and, therefore, termination of the concerned employees in violation of Section 25 of Industrial Disputes Act make such termination bad in law and, therefore, has rightly been set aside by the Tribunal.
9. Mr. Rele, the learned counsel for the petitioner vehemently contended that even if it be assumed that the concerned workmen had completed 240 days yet there was no finding by the Tribunal that there were permanent posts vacant to that extent and, therefore, the Tribunal could not have ordered for making such employees permanent. Mr. Rele urged that in the absence of such permanent posts being vacant, no direction could have been given by the Tribunal for regularisation of the concerned workmen.
10. The Bank is a multinational Bank but it did not produce any evidence before the Tribunal relating to strength of sub-staff in various branches at Bombay. The Bank was expected to produce the relevant material before the Tribunal which could have shown the staffing pattern and strength of sub-staff in various branches at Bombay determined by it and the vacancies that fell from time to time. The Bank only produced a letter dated April 16, 1993 written by it before the Assistant Labour Commissioner wherein it was stated that the Bank has identified 18 vacancies for sub-staff and accordingly invited applications for filling such vacancies which could not be believed because in the award passed by Justice TULPULE in the year 1985 popularly known as 'Tulpule Award', the strength of the staff (including sub-staff) obtaining on the date of the award was frozen. Admittedly at the time Tulpule award was given, the Bank had sub-staff strength of 194 employees in Bombay. After 1985, quite a few employees in sub-staff had retired and in the year 1992 when the dispute arose, admittedly only 124 employees were permanently working in sub-staff cadre. It is also admitted case that from the year 1988 the Bank had been employing various persons in sub-staff on temporary basis as temporary employees. According to the Union such temporary employees were appointed against the permanent posts but were neither given appointment in accordance with the Bipartite settlement nor were paid wages accordingly whereas according to the Bank, those temporary employees were employed because of temporary increase in the work load and they were paid wages accordingly. Be that as it may, the fact remains that the persons have been employed temporarily regularly in various branches of the Bank at Bombay from the year 1988 for different periods. This fact is clearly reflected from the documents produced by the Bank Exhibit 91-M (Pages 331 to 340 of the paper book). The Union's witness Mr. P.N. Subramanian has referred to the substaff strength in the branches of Bombay as well as all over the country and the vacancies during the relevant period in details. The said evidence and that is substantially not disputed by the Bank, clearly reveals that the sub-staff strength in Bombay at the time Tulpule Award was given was frozen at 194 while the sub-staff strength as on August 1995 was 124. In the year 1992 the Bank did invite applications for filling up the vacancies of the sub-staff and pursuant to the said advertisement, 18 permanent posts in the sub-staff cadre were filled in. Apparently, therefore, more than 50 vacancies in sub-staff still exists. The Bank has grown multifold after the Tulpule Award was given in the year 1985. It has also acquired additional space because of increase in deposits and expanding business. The Tribunal has considered the evidence led by the parties at great length and from overall discussion made by the Tribunal, it is seen that the Tribunal was clear that permanent posts in sub-staff were lying vacant and accordingly the concerned employees who were not absorbed and regularised till date were ordered to be regularised. The contention of the Bank that there are no permanent posts vacant and, therefore, the concerned employees cannot be directed to be regularised has rightly been disbelieved by the Tribunal on overall consideration of the entire available material placed by the parties and the said consideration does not suffer from any infirmity warranting interference by this Court in extraordinary jurisdiction under Article 226 of the Constitution of India.
11. The citations heavily relied upon by Mr. Rele have no application in the facts and circumstances of the case. In Catering Cleaners of Southern Railway, the Apex Court held that the question of making particular employee permanent would arise only after permanent post has become available. In the present case, the Tribunal on consideration of the entire material on record was of the view that there were permanent posts vacant and accordingly ordered the concerned employees to be made permanent and, therefore, Catering Cleaners of Southern Railways case does not help the petitioner at all. In Surinder Singh Jamwal's case the ad hoc appointees were in service for 13 years and they claimed regularisation. The Apex Court observed that the ad hoc appointees were only temporary employees de hors the Rules and, therefore, cannot claim any right of regularisation- Surinder Singh Jamwal's case therefore, does not come to the aid of the Bank's case at all. In Aswani Kumar's case the Apex Court was seized with the question as to whether the temporary employees were entitled to be regularised on a project which was closed for non-availability of funds. In the fact situation of the Project having been closed the Apex Court held that no direction to regularise the employees could be given. In the present case, the Bank is not closed, rather it is growing and expanding and, therefore, the observations made in Ashwani Kumar's case have no application at all. The Division Bench of the Calcutta High Court in Samara Das was concerned with the case where casual workers working in State of West Bengal who had completed 240 days sought regularisation. It was found by the Division Bench of the Calcutta High Court that in exercise of the powers conferred upon the State of West Bengal under Article 309, Recruitment Rules were framed and, therefore, the employees could only be regularised in accordance with the Recruitment Rules. The Division Bench of Calcutta High Court observed that regularisation of service is possible if legislation is made or statutory Rule is framed and regularisation cannot be granted in absence of statutory Rule or policy decision. Here it is admitted by the Bank that the employment of the workmen are governed by Shastri Award, Desai Award and various bipartite settlements entered into between the Bank and the Union and the Federation of the Unions from time to time. The concerned employees are basing their right in terms of the bipartite settlements and the awards governing such employment. In terms thereof, the direction given by the Industrial Tribunal to the Bank to regularise the services of the concerned employees cannot be faulted. Samara Das does not help the Bank in the facts and circumstances of the present case.
12. Mr. Rele, sought to urge that the employment in the Bank is governed by Recruitment Rules and in terms thereof the concerned employees are not eligible. Confronted with the query of the Court to place. on record the said Recruitment Rules, Mr. Rele, frankly conceded that there were no Recruitment Rules framed as such but the eligibility conditions are reflected in the notice dated August 26, 1992. Upon perusal of the said notice dated August 26, 1992 (Exhibit H to the writ petition), I find that by the said notice the Bank desired to recruit some employees in the subordinate cadre in the post of sweepers-cum-peons at its branches in Western India and some eligibility criterion were mentioned therein. From the said criterion it cannot be inferred that it is in the nature of Recruitment Rules and that it is applicable to the concerned employees. This argument of the learned counsel for the petitioner does not have any merit and, therefore, has to be rejected.
13. Mr. Rele, then, contended that vide notice dated August 26, 1992 the Bank desired to recruit some employees in subordinate cadre in the post of sweepers-cum-peons in its branches in Western India and applications were invited from candidates. In pursuance thereto 38 persons out of the present 46 employees made applications and after due selection process, 14 employees were selected and rest of the employees were rejected and, therefore, the said employees who had applied pursuant to the notice dated August 26, 1992 and were not selected cannot claim their regularisation and permanency. It is true that 38 persons out of the concerned 46 workmen made applications pursuant to the notice dated August 26, 1992 and that from amongst them 14 were selected and were given permanent employment in subordinate cadre. But there is no material on record produced by the Bank that the rest of the concerned workmen were not found fit for selection. Though under the awards and the settlements holding the field the Bank was required to notify the exact number of the vacancies which were to be filled in which was not done yet the fact is that pursuant to the said notice only 18 persons were given appointment and out of them 14 workmen from amongst the concerned workmen. From this it cannot be inferred that the remaining workmen who applied pursuant to the said notice were not found fit or could not claim any permanency or regularisation on the basis of their completion of temporary employment in terms of Shastri Award, Desai Award and the Bipartite Settlement holding the field when the posts were lying vacant. This contention of Mr. Rele also has no substance and is therefore, rejected.
14. Mr. Rele lastly contended that the second reference made by the Central Government was incompetent being destructive of first reference and, therefore, the award is liable to be set aside. This contention of the learned counsel for the petitioner is only noted to be rejected. It is very difficult to comprehend how second reference is destructive of first reference since the first references related to regularisation of the concerned employees and three of the employees whose services were terminated and names were shown in Annexure "B" annexed to the reference while the second reference related to the reinstatement of the 29 employees whose services were terminated during the pendency of first conciliation proceedings. Besides that it is seen that the petitioner had earlier filed writ petition before this Court challenging the second reference and the said writ petition was dismissed as withdrawn. From the perusal of the said order I find that no liberty was granted to the petitioner to reagitate the said question later on. Legal position is more than well settled that when a petition is withdrawn, sans liberty to reagitate the same contention, subsequent petition raising the issue again though is not barred by principles of res judicata yet same issue cannot be allowed to be reagitated on the principle of public policy. The last contention raised by Mr. Rele, the learned counsel for the petitioner also fails.
15. All in all, the Tribunal has considered the entire matter threadbare in the right perspective with proper approach and after due consideration of the entire material on record passed the award on June 30, 1997 which does not suffer from any infirmity warranting interference by this Court in the extraordinary jurisdiction under Article 226 of the Constitution of India.
16. Resultantly, the writ petition has no merit and is dismissed. No costs.
17. Certified copy expedited.