SRI JOHN MATHEW GALEB, REPRESENTING SRI K v. SIMHADRI The Court made the following

Order

Ag;gricvecl by the Award datcd 27.06.20O3 passed by the l"t responderlt 'l'ribunal in LCID No. 16/ 20(12 directing reinsLatclrlettt of the 2"a rcspondent without llack wages, petitioner Bank is before this Court. 'i'h e case of petitioner bank is [hat the 2"d 2. responclent, u'ho u'as a te mporary employe e, filccl ID No' 9 of 2000 befc,re thc [ndustria] Tribunal cum Lat>our Court, Visakhapatn:rm under Section 2 (A)(21 of the lndustrial Disputes Act, challenging his termination from service. The said dispute [,as transf€ rrr:cl to the 1 't respondent where it rvas re-numbered as LCID No 16/2002.

2.1 It is stated thzrt petitioner bank cont:nded before the Tribunal that clue to mechanisation of branclLes, the need lor A[tende ls has considerably reduced in branche:s and ofhces in petitiont:r llank, as such they are not in a position to absorb all the temporary attenders rvho are in the panel [t can absorb them only as arncl u'hen the vacancics arise and they had taken a st:rnd br:lo-e this Court thaL it u'ould not .-'rult-any. -other 'i t. I 7 person to fiI1 up the regular vacancies and only candidates from the panel of temporary attenders alone will be considered The 1st rcspondent ought to have considered the above submissions ancl held Lhat the n'orkman was not cntitlcd to any regularisa[ion or absorption petilion respondent' The case of petitioner bank is that the 2'd 2.2 respondent u.as initially-engaged in their Bank in 1984 and sincc thcn r,,,orking as a temporary Attender with break ups from trme to time ancl hc $ras engaged on some occasions depending upon exigencies of work. The Governmcnt of India reviervcd the ban on recruitmenl in the nationalised Banks and advised the banks to enter into separate settlements with their respcctir.e Unions to regularise the seruices of the temporary Attenders. Follou'ing thc guidelines, the Bank had entcred into a settlement datcd 09.04.1996 under Section 12 of the Act with Syndicate Bank Employces' Union, as per which, temporary emplol,e es in the Bank were classified into the following catcgories: Temporarv Attenders who had rvorked for more than 246 days in a consecutive period of 12 months betrveen 1.1 1982 and who were entitlcd to the benefits of Section 25 (F) and (H) ofthe ID Act Temporary Attenders rvho have put in less than 240 days sen'ices as temporary but more than 90 days betu'een 1-1 1982 and 31 12-89 \ t / -) ,}

2.3 ]'he 2"d respondct]t worked in petitioner Bank for only l7O davs |-om 1994 to 1988, as such he was pltced under thc 2nd pane I i,:. in the panel of Attenders who had u,orked for more than 9(J c ays. Since there are several tempora ly person s who are senior to the 2.d respondent in the panel, u,aiting absorpLiorr in lcgular vacancies, ttre 2",1 respondent is not entitlcd to anv l)crmanent appoinLment and he u,il[ have to wait till his term a:j per his senioritt' in the pancl, ac r:ording to petitioner.

2.4 IL ij stated that the 2"d re"pondent u'as :ngagcd as temporary ltttcnder in Visakhapatn:rm Main Ilranch of petitioner Bank to perfbrm duties on casual vacancies caused due to the leave/absence of rcgular attendcrs due to con Lingencv of r,,,ork. Hou'ever, thc Bank hacl received complaints aga nst him from the cuslomers. It was reported that he obtained standing instructions lo transfcr Iunds lrom the customer's accounL to his accounl bv misrcpresrenting thc lacts and recuested the Bank not to honour such l,:tters. The Bank called lbr an explanation lrom thc 2,1d responclent which was found not r;atisfactory. Apart from the above, he was also scn ccl with several lelters for his unsatisfactory work. There \_ \/ I '{ 't 'I I. 4 werc also complaints against the workman regarding being irregular in altending to his duties and he was served with letters for his irregular attendance/ unauthorised absence. The r,r,,orkman was also in the herbit of indulging in outside borrou,ings beyond his capacity to repay rn'hich resulted persons concerned approaching him while he was on dury. Since the complaints were scrious in nature and had shaken confidence of thc Bank in his intcgrity and honesty, hence, il was decided to terminate him. Petitioner Bank, betng a public financial institution and handling money cannot continue such persons. The 2"d respondent is only a casual cmployee, as such the provisions ofconducting disciplinary action are not applicable to him. Therefore, the serwices of the 2"d respondent were terminated rvitl'r e ffcct from 14.06.199 uide order dated

14.06 1999.

3. By order dated O5.03.2OO4, this Court admitted the Writ Petition and grantcd inlerim stay of all further proceedings and on hling thc affidavit by thc 2"d respondenl with regard to his last drawn pay, petitioner shall comply with the rnandatory requirements under Section 17 -B of the Industrial Disputes Act, 1947 \ a-- 's1':JaEfflFqr.r:'t ,' \ ) lt is the case of the 2"4 respondcnt that he was 4. working as Attcnder u/ith 'Petitioner Bank srncc 19;34 and was appointed cn rcgular vacancy with eflect from .9-12-1991, hog.ever, he u as re lievcd from scrvice on 1 4 6- 1!,99 u,ithout assigning any reason. There rvas no departmental enquiry conducted and he was drawing a wage of Rs.600/- olus special aliou.anccs of lls. 115/ and D.A. at the timc of hir; dismissal. Therefore, h,-'approached thc Management of petitiorrer and the union to recon sidcr the decision of dismissal front sen,ices and to takc him back into servicc u'ith all benefits and he also got issued Notice ,vhich rvas acknowledged on 27 12 1999 by the Petitioner management. However, they have not re sponded to the notice n(lr.einstated him into servicc. Hence. l-rr: raised tl-re f)ispute .

4.1 It is stated, the Learned .Iudge passed the impugneci Au,a -d observing that no enquiry uras conclucted and Managemcnl did not try to prove allegations agai tst Lhc 2rd responde n t ,lx(rcpt examir-ring MW 1 ; from Ex.W7, it is cle:rr thal the 2"d re,;ponden t was dismissed after having putting 1 2 years of serr.ice and rctrenchmenl compensation is also not properly calculrrtcd. Hence, set aside the dismissal ;rder dated ,I { I 6 74 6 1999 and directed his reinstatement on or before I-9-2OO3 on his last drau,n u,ith all attendant benefits (except back wages) and one month pay in lieu of notice Rs.3333-36 and retrenchmcnt compensation of Rs.6666.72 paise shall be retaincd by the 2"a respondent for the compensation in licu of wages for the period from 15-06 1999 till the date of reinstatement. His entire service with e ffect from I 3-O5 1987 including this period, shali be calculated for the terminal benefils only. If the petitioncr is not reinstated on or before l-9-2OO3, he shall be entitled to wages from that daLe.

4.2 Consequent on the Award, it is stated, the 2nd respondent was not reinstated in service or at least paid wages as directed. Holvever, his Jtiniors were promoted and became permanent a1so. It is difflcult for this rcspondent to survive without wage and employment as his servlces \\rcre illegally terminated withou[ anl' enquiry and in utter violation of principles of natural justice and his family is depending on him.

Ms. Swetha Pamidi, learned counsel for petitioner submits tl-rat the Petition fiIed by the 2"d Respondent was not maintainable as the samc was flled under the Andhra Pradesh Amendment Agt 3211987 of [he Industrial Disputes Act, 1947. \ 1 'it The Amendrncnt was enacted bv the Stale Govcrnmcnt, sllch, it can onlv bind the employers and the employees rvorking in the estabLishments for which, the appropriate Liot e rttment is the Statc (iovernment of Andhra Pradesh. Hc,tr.ever, the Responclent No. 2 was engaged as a Tempora[, A1 l-ender in a NationaLised Brlnk for which, the appropriate GoverrLment is thc Central Govcrnment, hence, thc 2"d respondent coL.id not have fltecl his cLrinr ut-rder the Amcndments made ltv the qLate Gor.emmcnt. 'lhc above objection $,as not anss'< red b1' the Tribrlna l.

5.1 Further, it is contended, the 2",1 Respondent bypassed conciliation proceedings and directly approached Lhe Labour Corrrt under Scction 2-A (21 o[ the Inclustrial Act (Andhra Prirdcsh Amendment Act 3211987), hencr:, the Writ Petition is lir,rblc to be dismissed on that ground also. This Court rrt Nutrine Confectionary Co. Ltd. a. Gouernment oJ Andhra Pra.deshl, held that "even in the absence of these q,ords specilically in the amendment introduced by the Star-e of Andhra Pradcsh, still rhe workman has to approach thc Lzrbour Court only if the con.:rliation proceedings fail as sub-section (2) of 2'A ' tqgg (o) ,\LT 87 (r).8.) 8 1 of the Act starts u,ith a non absente clause namely 'notwithstanding anything in Sec. 10'. In other words, it excludes only Section 10 and not other provisions of thc Act. Therefore, under Section 2-A(2), workman can approach the Labour Court directly only when conciliation proceedings [ail. " ln view of the same, when the Petition itself is not maintainable before the Labour Court, the Order passed therein cannot be valid in Lhe eye of law.

5.2 As per the guidelines issued by the Central Government, permanent employecs could only bc recruited from candidates sponsored by the emplol.ee exchange or on compassionate appointment o[ deceased employees or from candidates who are already working on a temporary basis. [n view of thc abovc rcstrictions, PcriLioner Bank would engage thc services of temporary Attendcrs from time to time as the Petitioner Bank ivas not automatcd during that time and thus, required such services rendercd by temporary Attenders to ensure smooth functioning. The temporary. Attenders would be cailed when the regular Attenders were on leave and/or due to temporary increase in workload. --]____]r- :ii!;€ry=iY' 9

5.3 l-earned counsel submits that the 2,,d Respondent \vas nevel-appointed as a regular employee as alleqed and Lhe certilled cc PY of the Panel o[ Temporary Attcndcrs for Visakhapatrrarn District clearly shorvs that he \\'a s \\.orking as a temporar5. cnrplovee until his termination. It is further contelrded tha complaints were submitted to the ellect that the 2,,,1 respondent $ras misusing all his position as il temporarl.. 'i emplor,ee in thc l;ank for unlau,ful personal ga1ns.

5.4 Ir rs submitted that engagement of employees \\'as subjcct to S,.rstrv Arn,ard as noti[red by the Ministn. of Labour. As per Cllatrse 522, a temporary employee may be terminalecl after giving i-ror,ice of 14 days. The said Award does not mandate conducting erLcluiry against a ternporary emplor.ce. h'r the prcsent cas,:', Rt:spondent No.2 r.r,as paid rn lieu of 14 dar.s' Noticc trs rc,lolded by the Tribunal as vvell rn its Orrler. Thus, it cannot bc statt'd that termination lrras illegal.

5.5 I[ rs also argued that it is settled posirion of lau, that regularisation o1-empioyment can only be as per ther guidclines and policf issu ecl lor that purpose and no employee can claim it as a matter oI right. In this regard, reliance can be placed on \ t It) tlnion of India v. Ilmo Deti2 and B. Lakshmi u. General Mdndger, Canara Bank (Writ Petitions No. 2140, 2143 ar,d 2144 of2O22l.

6. Sri John Mathew Galeb, learned r:ounsel representing Sri K.V. Simhadri, Iearned counscl for the 2"d respondent submits that petitioner Bank being a public sector undertaking, has to follou, the proccdure and rules prescribed by the Central Government in respect of recruiting the slaff in all cadres. So far as Lhe AtLender cadre is concerncd, they r't'ill have to be sponsored by the trmployment Exchange or a compassionate appointment of the dependants of the deceased t. employees etc. or from the candidates who are alrcady working in the Bank on temporary basis for a long pcriod. Even according to petilioner, if a person is appointcd u'ho is u'orking for a long period on temporary basis, thcy lr.'ill have to be considered. In view of the ban, there is no rccruitment in the Bank and it is also admitted fact of engaging temporary Attenders for a long period in the regular vacancies in vieu'of increase in work load. Therefore, the services of this respondent 1 lqoz t1 zo scc 290 \ is all the lnc,re required as there is a regular work load and he has been \\rorking lor more than a decade, hence, his services be regu la rizcr I. rs,lirer'ted.

6.1 ,\ccording to learned counsel, the l"t respondent rpprecrat(.1 Lcrv irnd also [acls und came to cunr.lusion in accordancc lurth Law, as such, the Award u,i,trrants no intcrfcrcnce.

7. r\t thc beginning, it has to be seen that he Disputc raiscd b] tLLe l',4 respondent is not maintainable before the Tribunal irr it .r as filed under thc provisions of the ltmendment Act 32 of 1987 of the Industrial Disputes Act, 1947. The said Amendment was carried out by the State Governrnent which binds onll em1;loyers / employees working. in the er;taisihment lor rvhich t1- e appropriate Government is the 'Statc'. In this case, the 2,,,1 rr:spondent u.as engaged in a nationalis:d bank fcrr rrvhich lhc a1;propriate Government is the Central Govcrnment. Thougl-r pctitioner bank had taken objection as to the marntainabilitS . the Tribunal filed to consider the sante.

8. Irur-ther, the 2"d respondent directly appr.oached the Tribunal $,ithout exhausting the conciliation proceedings. This Court in Nutrine Confectionary Co.Ltd.'s case (suprcl clearly / / t t2 and categorically held that undcr Section 2-A(2\ of the Act, a workman can approach the Labour Court directly when conciliation proceedings iail. In this case, apparcntly, the 2nd respondent has not availcd the said proceedings and directly, approached the Tribunal. g. Apart from the above aspect, from a perusal of the mate rial on record, it is to be seen that petitioner bank receive d complaints from one of their custome rs sLating tha t the 2'1(t respondent misrepresenLed them and [ried to transl'er money into his own account. So also other complaints reSlarding unsatisfactory work, being irregular in attending to his dutics and taking unauthorised absences, borrowing more than what he could repay, hence, the lenders would approach him while he \\,as on duty and Ienders also approached Lhe bank and:rskcd the management to repay the loar-r amount. In that regard, petitioner issued charge sheet dated 05.06. 1998 and as thc 2"d respondent submitted unsatisfactory explanation, tcrmin.rtion order date d 14.06.7999 r.r,as issued. F urther, thc 2"d respondent absented himself for one month between 08.72.1997 to 22-01.1998 after the complaint of Sri G. Prakash Rao rvas received; the Tribunal also recorded that the said absence gains i I i i j ) i i '::;'",,,/ significanr:e. 'lhe 2"d rcspondent admitted commis;sion o[ the acts mentiollccl in the complaint during the cross-examrnation, hou-ever, tl-r,t 'h'ibunal drrccted the bank to reinstate the 2trd responden t as; no er-rquiry u,as conducted, is not at all acceptablr'. 1 O. .As rightly zrrgued by the learned r:ounsel for petitioner, it. i:; settled lau. that regularisalion of cmploymer-it cer r-r onlv bc a s per thc guidelincs and policy issued for that purpose :rnd nr employee can claim it as a mater cl'right. The Bank entercrl i tto :r settlemcnt dated 09.04.1996 for absorption of temporary cmployces as rcgular employeer;. As per se ttlement, terrrporary employees u,ho worked for more than 24O davs betu,cen C1.O1.1982 ar-rd 31.12.1989 shall be given prioriry over thosc v,ho u.orked more than 90 da1,5 but less than 24O da1,s durrng th3 same period. In this case, the 2"d respondent r.r.orked on[1, lor i7O da1,s in Lhe given pcriod, hencc, he cannot bc givcn priorit,, over other employees who worked 1br a pcriod longer th:ut hinr, hence, he is not entitled to be giverL priority in appoin tment, 1 1. 'fhe other contention of the 2nd responctent is that hc rvas not pa id any relrenchmcnt compensation during his t ,i 14 terrnination. However, a perusal of the Award at page 17 shows that retrenchment compensatlon in lieu of 14 days' nottce period as Para 522 of the Sastry Award was paid to the 2"d respondcnt uide trx.M4 which shorvs that he was given one month in lieu of notice retrenchment compensatiort ol 15 days wages for every completed year of service since 1994 (Rs.1666.68 x 4) amountrng to Rs.6666.72 ar,d salary from 5']' February to 14.06.1999. ln view of the same, it cannot be stated that the termination was illcgal.

12. For thc foregoing reasons, this Court is of the opinion that Award impugned is liable to be set aside.

13. The Writ Petition is accordingly, allor,t'cd, setting aside the Award daled 27 .06.2003 on thc fi1e of [he 1"t rcspondent 'l'ribunal. No costs. Miscellaneous Applications, if any shall stand

14. closed. SD/- T.SREENIVAS REDDY NT REGISTRAR A S //TRUE COPY// S CTION OFFICER To, '1 . The Presiding Officer, Central Government lndustrial Tribunal-cum-Labour Court, I\/J Road, Nampally, Hyderabad

2. One CC to SRI DEEPAK BHATTACHARJEE, Advocate [OPUC] 3. One CC to S.C. for Central Government [OPUCI 4. One CC to SRI K. V. SIIMHADRI, Advocate [OPUC] 5. Two CD Copies o I\,4P TKS HIGH COUCT DATED:0610812025 'i c rlT ?0fr * ..'",,' ORDER WP.No.3979 of 2004 ALLOWING THE WRIT PETITION WITHOUT COSTS , I I { i i I I ! I i I ! I ,{ I