Uco Bank v. The Union Of India & Ors.

Patna High Court LPA No.286 of 2013 (5) dt.08-07-2013 departmental level, opinion of the advocate was obtained, and then permission taken from the Zonal office to file the Appeal. These procedures took reasonable time. There has been no intentional delay. What shall constitute “sufficient cause” to condone delay shall depend on the facts and circumstances of each case. There can be no rigid or fixed yardstick for the purpose. Though the discretion in the Court may be wide, it shall have to be exercised in a reasonable manner to advance the cause of Justice. In the facts of the present case, considering that the delay was only of approximately 34 days, and that official procedures did not take an abnormal time coupled with the fact that the explanation was not completely unacceptable, we are satisfied to condone the delay. The Courts have always leaned in favour of a final adjudicatory order bringing the controversy to an end rather than to shut out merit adjudication on technicality leaving the dispute festering. In (2005)3 SCC 752 (State of Nagaland v. Lipak Ao) considering the explanation of official delay it was held as follows :- “15. It is axiomatic that decisions are taken by officers/agencies proverbially at a slow pace and encumbered process of pushing the files from table to table and keeping it on the table for considerable time causing delay — intentional or otherwise — is a routine. Considerable delay of procedural red tape in the process of their making decision is a common feature. Therefore, certain amount of latitude is not impermissible. If the appeals brought by the State are lost for such default no person is individually affected but what in the ultimate analysis suffers, is public interest. should, “sufficient The expression cause” 3 Patna High Court LPA No.286 of 2013 (5) dt.08-07-2013 rather therefore, be considered with pragmatism in a justice-oriented approach technical detection of sufficient cause explaining every day‟s delay. The factors which are peculiar to and characteristic of the functioning of the governmental conditions would be cognizant to and requires adoption of pragmatic approach in justice-oriented process. The court should decide the matters on merits unless the case hopelessly without merit. No separate standards to determine the cause laid by the State vis-(cid:224)-vis private litigant could be laid to prove strict standards of sufficient cause. The Government at appropriate level should constitute legal cells to examine the cases whether any legal principles are involved for decision by the courts or whether cases require adjustment and should authorise the officers to take a decision or give appropriate permission for settlement. In the event of decision to file appeal, needed prompt action should be pursued by the officer responsible to file the appeal and he should be made personally responsible for lapses, if any. Equally, the State cannot be put on the same footing as an individual. The individual would always be quick in taking the decision whether he would pursue the remedy by way of an appeal or application since he is a person legally injured while the State is an impersonal machinery working through its officers or servants.” The present appeal arises from order dated

12.9.2012 passed in C.W.J.C No.12560 of 2004, declining interference with the Award of the Industrial Tribunal dated

3.2.2004 in Reference Case no.9( c) of 2003 directing regularization of the respondent. Learned counsel for the Appellant submitted that the respondent being a daily wager, the question of regularization does not arise in view of the Constitution Bench decision in (2006) 4 SCC 1 (Secretary State of Karnataka v. Uma Devi). He also relied on a full 4 Patna High Court LPA No.286 of 2013 (5) dt.08-07-2013 bench decision of this court in C.W.J.C. No. 267 of 2010 and analogous cases on the issue interpreting Uma Devi (supra) in view of a conflict between two Division bench decisions. Counsel for the respondents submitted that the regularisation has been considered and ordered by the Tribunal on basis of a tripartite settlement arrived at between the parties. The management did not deny the same either before the Tribunal or the Learned Single Judge. The Constitution Bench judgment in Uma Devi (supra) had no application to the facts of the present case as it related to regularisation of a casual worker and not to an Award passed by an Industrial Tribunal. It does not deal with the issues of a person already empanelled for regularisation pursuant to a tripartite settlement. The aforesaid judgment also recognises the right to regularisation of those who may have completed 10 years of uninterrupted service as a one time measure. We have considered the submissions made on behalf of the parties. The respondent was engaged on

18.6.1990. “Orally” on daily wages. He claimed to be working continuously since 7.12.1998, and hence the claim for regularisation and the consequent Reference. A panel had been prepared by the Appellant Bank for regularisation but implementation of which had been stayed on account of certain instructions issued by the Reserve bank of India dated 16.12.1997. The Tribunal held that according to the 5 Patna High Court LPA No.286 of 2013 (5) dt.08-07-2013 management itself, the name of the respondent found place in the panel, several persons from that panel had been regularised. It thus gave directions for the respondents regularisation also. The Tribunal further opined that since there was no permanent peon it could therefore be “safely inferred” that the respondent was working on a permanent post. This presumption of the Tribunal in our opinion was totally unwarranted and unfounded in absence of any such assertion by the respondent much less any material before the Tribunal to support such conclusion of fact. The Learned Single Judge held that the tribunal had adequately considered that the respondent had been working for 13 long years on daily wage, and had been discriminated in the matters of regularisation. It was further opined that approximately hundred persons from the panel had already been regularised and the remaining hundred persons were required to be given the same benefit. The Tribunal had passed the Award within the terms of reference. There was no procedural infirmity in the Award delivered by the Tribunal. The reference made to a Full Bench by order dated 17.5.2010 on the issue for regularisation in view of a conflict between two Division Bench decisions was not relevant in view of the decision in 1995(1)PLJR 303 ( Superintending Engineer, Rashtriya Uchch path Anchal, Muzzafarpur v. PWD Workers Union). 6 Patna High Court LPA No.286 of 2013 (5) dt.08-07-2013 If the respondent was of the opinion that the claim for regularisation was based on a tripartite settlement, it was for him to have asserted that fact before the Tribunal. No such ground appears to have been urged on his behalf and the Tribunal does not appear to have considered the claim for regularisation in that background. We do not find that any such plea was taken on behalf of the respondent even in the counter affidavit of the writ petition. The submission that Uma Devi(supra) has no application to an Award made under the Industrial Disputes act but related only to casual workers does not appeal to us. In (2007) one SCC 408 (Indian Drugs and Pharmaceuticals Ltd v. Workmen, Indian Drugs and Pharmaceutical Ltd.), setting aside an Award of the Industrial Tribunal for regularisation of a daily wage, after noticing Uma Devi (supra) it was held as follows : in service “47. We are of the opinion that if the court/tribunal directs that a daily-rated or ad hoc or casual employee should be the date of continued superannuation, it is impliedly regularising such an employee, which cannot be done as held by this Court in Secy., State of Karnataka v. Umadevi (3) and other decisions of this Court.” The observations in Uma Devi (supra) to consider for regularisation as a one time measure such persons who may have completed 10 years of uninterrupted service was 7 Patna High Court LPA No.286 of 2013 (5) dt.08-07-2013 not a blanket direction. There had been some confusion on the issue by reason of different orders of the Court leading to the reference to the Full Bench in C.W.J.C. No 267 of 2010 and analogous cases. On the face of the Award, the respondent was never appointed in accordance with law by "open competitive selection” much less was any appointment letter issued to him. The Award itself states that he was appointed “orally” which is not an appointment in accordance with Article 14 of the Constitution manifesting a completely illegal entry into service. We do not find any reason to uphold the submission that those who had been empanelled prior to the verdict in Uma Devi (supra) would remain unaffected by it and would be entitled to the benefit of regularisation. The Award was challenged immediately by the Appellant. The observations in this context at paragraph 53 of the judgment may appropriately be referred to :- “53. We also clarify that regularisation, if any already made, but not sub judice, need not be reopened based on this judgment, but there should be no further bypassing of regularising or making permanent, those not duly appointed as per the constitutional scheme.” constitutional requirement The Award of the tribunal having been questioned immediately, the direction regularisation of respondent was undoubtedly sub- judice disentitling him to the benefit of the Award. 8 Patna High Court LPA No.286 of 2013 (5) dt.08-07-2013 The reliance by the Learned Single Judge on P.W.D. workers Union(supra) in our opinion was misplaced. The fact that the respondent may have been a daily wage falling within the definition of a „workman‟ under the Industrial Disputes Act for purposes of non-compliance with Section 25 F may have been relevant for maintainability of the Reference but lost its efficacy and had no relevance to justify directions for regularisation by the Tribunal after the judgment in Uma Devi (supra) holding as follows:- “54. It is also clarified that those decisions which run counter to the principle settled in this decision, or in which directions running counter to what we have held herein, will stand denuded status as precedents.” A daily wage appointment is made in the exigency of service. Such person has no right to and does not hold a post. The question of regularisation directing him to be appointed irrespective of the need of the employer cannot be made. In CWJ No. 267 of 2010 the Full Bench summed up its conclusion as follows:- “We therefore sum up our conclusions and answer the reference as follows :- A) Uma Devi (supra) prohibits regularisation of daily wage, casual, ad-hoc and temporary the period of service being appointments, irrelevant; B) An illegal appointment void ab-initio made contrary to the mandate of Article 14 without open competitive selection cannot be regularised under any circumstances. C) Irregular appointments can be regularised if the appointment was made by an authority competent to do so, it was made on a vacant 9 Patna High Court LPA No.286 of 2013 (5) dt.08-07-2013 sanctioned post, in accordance with Article 14 of the Constitution with equal opportunity participation to others eligible by competitive selection and eligibility qualifications for a the candidate possessed regular appointment to the post. D) The appointment must not have been an individual favour doled out to the appointee alone and the person must have continued in service for over ten years without intervention of any court orders.” In our opinion, once it had been brought to the attention of the Learned Single Judge that the question for regularisation of a daily wage had been referred to a Full Bench in view of conflicting Division Bench orders, judicial discipline required that the matter should either have been referred to the Division Bench for further consideration or to be listed after the reference was answered rather than to rely upon a judgment which no longer held the field on the issue of regularisation. In conclusion, we find it difficult to sustain the order under appeal and set aside the same. The appeal is allowed (Navin Sinha, J) (Vikash Jain, J) P. Kumar/-