High Court · 2007

IN THE HIGH COURT OF JUDICATURE AT MADRASDate:- 30.8.2007CoramThe Honourable Mr. Justice M. CHOCKALINGAMW.P. Nos.12642, 13875 and 13876 of 2004 andW.P.M.P. Nos.14750, 16322, 16323 and 18315 of 2004S.A. Balaji .. Petitioner in W.P. No.12642/2004N. Ravi .. Petitioner in W.P. No.13875/2004Amrit Thakur ... Petitioner in W.P. No.13876/2004.vs..1. Punjab and Sind Bank, rep. by Chairman andManaging Director, Bank House, 21, Rajendra Place, New Delhi.2. The General Manager (Personnel), Punjab and Sind Bank, Bank House 21, Rajendra Place, New Delhi – 110 008.3. The Zonal Manager, Punjab and Sind Bank, Zonal Office, Spencer Towers, 1st Floor, 770-A, Anna salai, Chennai – 600 002....Respondents in all W.Ps.Petitions filed under Article 226 of the Constitution ofIndia, seeking to issue a writ of mandamus, directingrespondents 1 and 2 to regularise the services of thepetitioners as per the recommendation of the third respondentwith effect from the date of their first appointment astemporary Peons and consequential benefits such as seniority,arrears of pay, monetary benefits etc.For Petitioner: Mr. R. SubramanianFor Respondents: Mrs. S. Vijayadharani https://hcservices.ecourts.gov.in/hcservices/ COMMON ORDERThe petitioners have sought for a writ of mandamus,directing respondents 1 and 2 to regularise the services of thepetitioners as per the recommendation of the third respondentwith effect from the date of their first appointment astemporary Peons and consequential benefits such as seniority,arrears of pay, monetary benefits etc.2. Affidavits filed in support of the petitions and counteraffidavits are perused. The Court heard the learned counselappearing on either side.3. From the submissions made by the learned counselappearing for the petitioners and the respondents and lookinginto the material available on record, it could be seen that thepetitioners have been working in the respondent-Bank for nearlyabout two decades as Temporary Peons(sub-staff). They had beenin continuous service as temporary Peons (sub-staff) and theyhad been paid a consolidated salary of Rs.135/- per day fornumber of working days in a calendar month. They have got fixedworking hours and they have to report for duty at fixed hours ofwork and the same would be carried out till the end of theworking hours fixed by the respondent-Bank and in terms of theTamil Nadu Shops and Establishment Act. The work entrusted tothem by the respondent-Bank was supervised by various level ofOfficers and therefore, there was a master-servant relationshipbetween the respondent-Bank and the petitioners. The workallotted and carried out by them is not of a casual nature, butthat of a permanent nature. They have been appointed asTemporary Peons to work in the place of permanent vacancies. 4. The petitioners were doing temporary work in therespondent-Bank and the service conditions were regulated by Bi-partite settlement dated 19.10.1966 as amended more specificallyby clause 20.7 and 20.8, wherein, it is stated as follows:-"temporary employee will mean "a workmanwho has been appointed for a limited period forwhich is of an essentially temporary nature orwho is employed temporarily as an additionalworkmen in connection with a temporary increasein work of a permanent nature and includes aworkman other than a permanent workman who isappointed in a temporary vacancy caused by the https://hcservices.ecourts.gov.in/hcservices/ absence of a particular permanent workman";The respondent-Bank vide Memorandum of Settlement dated16.10.1992 entered into with the workmen represented by AllIndia Punjab and Sind Bank Staff Organisation under Section 20(p) and 18(1)(p) of the Industrial Disputes Act, 1947 read withRule 58 of the Industrial Dispute Central Rules, 1957. The saidMemorandum of Settlement was further amended in the year 1994with regard to para 'a' and 'b' with all other conditions andterms remaining same as stated in the original. 5. Keeping in view of the plight of the temporary Peons andwith a view to set at rest all disputes, which have arisen ormay arise, the Management and the All India Punjab and Sind BankStaff Organisation agreed that the case of temporary employeesagainst permanent vacancies at the State level to be notified bythe Bank from time to time and has to be availed for absorptionin the subordinate cadre in the following manner:-"Firstly, by absorbing those employees whohave completed 240 days in the preceding 12months to be reckoned from the date of lastserved or in any other block of 12 consecutivemonths commencing from 1.1.1982 to 31.12.1989.Their inter-se seniority would be determinedState-wise (emphasis added) on the basis of thedate on which they first worked as temporaryemployee; andSecondly, and therefore those employeesnot falling in the above categories but haveatleast worked for 90 days from 1.1.1982 to31.12.1989 shall be given one time opportunityto appear in the selection process of the Bankand the seniority will be determined andselection will be done preferring those whohave joined first in the Bank, serial wise i.e.first come first serve basis."6. In the settlement, it was clearly stated that alltemporary employees falling in the above categories irrespectiveof the fact, whether they applied in response to the respondent-Bank's advertisement or not, would be given opportunity asstated above. The said opportunity would be extended to thoseemployees, who have taken up the matter with ConciliationMachinery/Courts/Tribunals either individually or throughUnions. It was further clarified that all cases of temporaryemployees will be considered, subject to verification of theBank and in accordance with the Bank's recruitment as against https://hcservices.ecourts.gov.in/hcservices/ permanent vacancies. It is however clarified that theeligibility with regard to age, qualification of the saidtemporary employees would be reckoned on the date first workedin the Bank. 7. There are three temporary Peons, who are employed by therespondent-Bank, are at present in the State of Tamil Naduagainst the four permanent vacancies and when there was zerolevel of peons, the petitioners are 1 to 3 in the seniority listagainst the referred vacancies. In such circumstances, enormoustime has lapsed and repeated requests were made by thepetitioners to the respondent-Bank, but the respondent-Bank haveneither considered their request nor regularised their servicesas sub-staff. Under the circumstances, they are compelled tofile the instant writ petitions before this Court.8. In answer to the above, learned counsel appearing forthe respondent-Bank would submit that the first respondent-Bankis a Nationalized Bank under Banking Companies Acquisition andTransfer of Undertaking Act, 1980 and it shall abide by theguidelines stipulated by the Reserve Bank of India andGovernment of India from time to time. The service conditionsof the employees of the Bank are governed by various awards andsettlements from time to time. The Bank has got number ofpermanent employees on its rolls for attending the day-to-dayfunctions. The employees of the Bank are represented by the AllIndia Punjab and Sind Bank Staff Organisation. The recruitmentfor permanent posts were done strictly in accordance with theRules and Regulations applicable to the respondent-Bank.However, in the sub-staff level, if need arises, it was open tothe concerned branches to engage the available individualspurely on temporary basis from time to time depending upon theexigencies. 9. There was a settlement entered in in the year 1992,which provided for absorption of temporary employees against thepermanent vacancies at the state level as notified by the Bankfrom time to time on certain terms and conditions. It isfurther agreed in the settlement that the absorption of thesetemporary employees are subject to verification by the Bank andin accordance with the Bank's recruitment norms against thepermanent vacancies. However, it was clarified that insofar asthe eligibility with regard to the age and the qualifications ofthe said temporary employees were concerned, those would bereckoned on the date first worked in the Bank. The terms andconditions in the settlement were subsequently modified byanother section 18(1) settlement dated 13.8.1994 and the samewas entered into between the Bank and the Staff Organisation. https://hcservices.ecourts.gov.in/hcservices/ The appointments were made based on the above settlements. 10. However, during the year 1995, the ban on freshrecruitment came to be imposed on the Bank. Thereafter, nofresh recruitment has been made and the said ban on recruitmentis still in force. The allegation of the petitioners that theywere in continuous employment from 1984 is denied. Thepetitioners were engaged purely on temporary basis depending onthe exigencies. Further, it is not necessary that the employeesso engaged on temporary basis should remain there in the Banktill its closing hours and on the other hand, they will berelieved immediately if they had no other work to perform. Thepetitioners were doing only sundry and miscellaneous work.Hence the question of supervision by the Bank does not arise.On that basis also, they cannot claim for regularisation ofservice. They were doing the allotted work of temporary innature. 11. Insofar as 1992 settlement and subsequently amended in1994 is concerned, it is made clear that State level seniorityfor absorption of temporary employees was prepared andappointments were made based on the above settlement. However,during the year 2001, the ban on fresh recruitment came to beimposed on the Bank. Consequently no fresh recruitment has beenmade thereafter. The respondent-Bank is ready and willing toconsider the names of the petitioners as and when the ban islifted and the regular process of appointment commenced as perthe terms of the settlement dated 16.10.1992 and 13.8.1994.The entire process of absorption of the temporary employees isbased on the procedure mentioned in Section 18(1) settlementsdated 16.10.1992 and 13.8.1994 subject to Bank's recruitmentnorms against the permanent vacancies. 12. Under the circumstances, the claim of the petitionerseither for recruitment or for regularization cannot be done. Ifthe prayer of the petitioners is granted, granting permanentemployment to all those who are being temporarily or casuallyemployed in the respondent-Bank, such a direction would heavilyburden the Bank. The Hone'ble Apex Court, while dealing with asimilar matter, has held that the Courts ought not to haveimposed a financial burden on the employees by such directions,as such directions may turn counter-productive. Under suchcircumstances, all these three writ petitions, seeking writ ofmandamus, or any direction as one asked for, have got to bedenied and the same have got to be dismissed.13. The Court paid its anxious consideration on thesubmissions made by either side. https://hcservices.ecourts.gov.in/hcservices/

14. The petitioners in these writ petitions have beenworking in the first respondent-Bank as Temporary Peons (sub-staff) for more than two decades and they have been paid aconsolidated salary @ Rs.135/- per day for the number of workingdays in a calendar month. Their case is that though they werecalled as temporary Peons, they were entrusted with the work ofpermanent nature and they have to work for the fixed hours. Ithas also been supervised by various level of Officers and theirservice conditions are regulated by Bi-partite settlement dated19.10.1966. Since they have worked for more than a decade,considering the nature of work and period for which they haveworked, their services have to be regularized, but not done so.Though the third respondent sent recommendation to the secondrespondent to regularize the services of the petitioners, thesame has not been done. Even as per the settlement entered intobetween the staff Association and the Management in the year1992 and subsequently amended in 1994 is given effect, thepetitioners are entitled to the benefit of regularization. 15. The respondent-Bank put forth its defence in short isthat there is a ban in the year 2001 which stopped freshrecruitment on the Bank. The Bank is actually a Nationalisedone under Banking Companies Acquisition and Transfer ofUndertaking Act, 1980 and it shall abide by the guidelinesstipulated by the Reserve Bank of India and Government of Indiafrom time to time. These petitioners are bound by thesettlement originally entered into in 1992 and subsequentlyamended in the year 1994. Even as per the terms in thesettlement, the petitioners cannot seek for any regularisationand even if they are regularised, it is being stopped by theban 2001. 16. Learned counsel would add further that actually a panelof temporary Peons has been prepared and the names of thesepetitioners had also appeared in the said panel. But, when theban comes in 2001, though the Bank is prepared to absorb them,the same could not be done. 17. After considering the submissions made by either sideand looking into the materials available on record, the Court isof the considered opinion that direction sought for by thepetitioners in the writ petitions has got to be granted. It isnot in controversy that these petitioners have been worked inthe first respondent-Bank on temporary basis for nearly abouttwo decades. The first contention is that the petitioners havebeen working for stipulated hours and they are under thesupervision by the Officers and their work what is entrusted to https://hcservices.ecourts.gov.in/hcservices/ them is not casual in nature but of permanent nature. Therecannot be any quarrel and it cannot be denied now. From thematerials available and placed before this Court, the ZonalManager, on previous occasion, sent communication, whereby hemade recommendation that these petitioners have got to beabsorbed. 18. The first communication was sent on 22.2.1997 by theZonal Manager to the Deputy General Manager at New Delhi,wherein it is clearly stated as follows:-"Out of the remaining, the following personsare eligible for regular service as perguidelines.1)Y. Ramesh – From Andhra Pradesh2) G. Ashok – from Andhra Pradesh3)L. Ramakrishnan – from Andhra Pradesh4)S.A. Balaji – from Tamil Nadu5)V. Rajan – from Trivandrum (Kerala) These persons have already worked formore than 90 days from 1.1.1982 to 31.12.1989as such they are eligible for absorption inregular cadre as per Modified Memorandum ofSettlement dated 13.8.94. The remainingpersons, Shri Amrit Bahadur Thapa, ShruiGurdev Singh and Shri N. Ravi does not fulfilthe requirement of minimum service from 1.1.82to 31.12.89. However, all the three haveworked for more than 240 days from 1.1.90onwards. Shrui Amrit Bahadur Thapa and ShriGurdev Singh have continuously worked asTemporary Peon in B.O. GT. Madras and ZonalOffice, Madras respectively for more than 4years from 1.1.90 onwards and Shri N. Ravi for667 days.Our office is having approved strength of4 subordinate staff and presently we arehaving only one regular peon. Two have beenpromoted and one Mr. Ravi Sachdeva expired andunder the circumstances we are utilising theservices of Shri S.A. Balaji and Shri AmritBahadur Thapa as Temporary Peons.Keeping in view these facts we may bepermitted to absorb the abovementionedtemporary peons in the regular cadre."Following this, second recommendation letter in Zonal Office, https://hcservices.ecourts.gov.in/hcservices/ Chennai dated 3.2.1999 was sent by the Zonal Manager to theDeputy General Manager (Personnel). The third letter was sentby the Zonal Manager to the General Manager(Personnel) on31.12.2001, wherein it is stated as follows:-"However, three temporary Peons areworking out of the panel of the Bank, whoare as under:1.Amrit Thakur, Zonal Office,Chennai.2.S.A. Balaji, Zonal Office,Chennai.3.N. Ravi, Extention Counter, H.C.E.PadurAs these persons are working since long, outof the panel as stated above, you arerequested to guide in the matter in thesethree cases."19. A reading of these communications would make it clearthat Peons were available and the services of the petitionerswere utilised in the place of regular employment. Despiterecommendation letters sent to the General Manager to regularizethe services of the petitioners, nothing had happened.20. The only contention that is put forth by therespondent's side at this juncture is that the petitioners wereengaged purely on temporary basis. Though the settlements wereactually entered into in 1992 and subsequently in 1994, in viewof ban in 2001, the petitioners cannot be regularized. Atthis juncture, it is pertinent to point out that the letterdated 31.12.2001 was subsequent to the ban in question. Apartfrom this, a letter was sent by the Zonal Manager on 11.5.2002wherein it is clearly stated as follows:- "The problem faced by Branches with zerolevel posting of peons strength came up fordiscussion during the recent Review Meetingheld on 10.5.2002. Our worthy ExecutiveDirector Chaired the meeting which was alsoattended by General Manager (P&D) Our worthyExecutive Director advised that only thoseBranches/offices can engage a temporary peonwhere there is Zero-level of peons and thattoo only from the existing panel of peons of https://hcservices.ecourts.gov.in/hcservices/ the Bank. We submit that the followingtemporary peons are in the panel of our zonein the state of Tamil Nadu/Andhra Pradesh asper enclosure:1. Shri S.A. Balaji2. Shri N. Ravi3. Shri Y. RameshThe following branches/office have beenidentified as Zero-level branches for postingof peons.a) ZM's Secretariat, Zonal office, Chennaib) Extension counter HME, Padurc) B.O. Coimbatored) B.O. Tirupure) B.O. VijayawadaKeeping in view of the requirements, it isproposed that we may confirm from the brancheslocated in TamilNadu/Andhra Pradesh State thatthey are not engaging any peon except from theexisting panel for the decision conveyed byWorthy Executive Director in the meeting.Further, we may engage the services ofShri Amrit Takur as temporary peon at ZonalManager's Scretariat, zonal office, Chennai."21. From the very reading of letter, it would be quiteclear that a need and necessity arises and a meeting was heldand the Executive Director chaired the meeting and the names ofthese petitioners were also stated. It is also quite clearthe the ban on new recruitment cannot come suddenly. Therespondent-Bank, after utilising the services of thepetitioners, who have been employed for the past twenty years,cannot now say that they could not be regularized, by takingshelter that the ban on new recruitment came into force in 2001.Further, no doubt, the settlement that was entered between theparties originally in the year 1992 and subsequently amended in1994 would bind both the parties. A reading of thesesettlements would clearly reveal that it was actually in favourof the petitioners. The first settlement of the year 1992 readsas follows:-"A) Firstly, those employees whohave completed 240 days in the preceding https://hcservices.ecourts.gov.in/hcservices/ 12 months to be reckoned from the datelast served or in any other block of 12consecutive months commencing from15.4.1980. Their interest senioritywould be determined statewise on thebasis of the date on which they firstworked as temporary employees as perbank's available records.B) Thereafter, the other employeesnot falling in the above category buthave atleast worked for 90 days from1.1.82 to date of this settlement i.e.16.10.92 shall be given one timeopportunity to appear in the selectionprocess of the Bank and their senioritywould be determined and selection willbe done by preferring those who havejoined first in the bank, serialwisethat is first-cum-first serve."22. It is also made clear that all the temporary employeesfalling in the above categories irrespective of the fact whetherthey applied in response to the recent Bank's advertisement ornot would be given the opportunity as stated above, if theyapproach the management before the selection commences. It isalso quite clear that in the instant case, thoughrepresentations have been made, the same have not beenconsidered. It is also clarified in the settlement that theeligibility as regards age and qualification of the temporaryemployees would be reckoned on the date first worked in theBank. On regularising the temporary employees against thevacancies so determined, their entry and seniority would bereckoned from the date of their joining the services as regularemployees on probation in permanent subordinate cadre. Afterreading the terms in the settlement, it would be futile exerciseof the respondent-Bank to contend that there is no question ofregularising the temporary employees if at all they areregularised, since the ban is in force, the same cannot be done.The terms of settlement in 1992 and 1994 are in favour of thesepetitioners. The ban what is found on new recruitment may notbe applied to these petitioners herein.23. Further, the decisions relied on by the petitionersreported in the case of MOHAN CHANDRA GHOSH v. CENTRAL BANK OFINDIA (2007(4) SLR 334) and MINERAL EXPLORATION CORPN.EMPLOYEES' UNION v. MINERAL EXPLORATION CORPN. LTD. ((2000)6 SCC310) have got full application to the present facts of the case.It is well settled that when there are vacancies, the persons https://hcservices.ecourts.gov.in/hcservices/ are entitled to be absorbed. In the instant case, despiteavailability of work noticed and the petitioners are beingutilised for the work of permanent nature, they cannot now bedenied on the ground of ban on new recruitment. It is also anadmitted case that their services were utilised by the Bank formore than 240 days i.e. 12 calendar months and they have workedfor more than two decades. When vacancies were available, therespondent-Bank cannot take its shelter that there is a ban in2001 and therefore, they could not regularise the services ofthe petitioners. 24. Considering the facts and circumstances of the case,it is a fit case that a direction has got to be given to therespondent-Bank. Accordingly, the respondent-Bank is directedto regularise the services of the petitioners as one asked forin these writ petitions. All these writ petitions are orderedaccordingly. Consequently, the connected W.P.M.Ps. are closed.No costs.Sd/Asst.Registrar/true copy/Sub Asst.Registrarssa.To1. Punjab and Sind Bank, rep. by Chairman andManaging Director, Bank House, 21, Rajendra Place, New Delhi.2. The General Manager (Personnel), Punjab and Sind Bank, Bank House 21, Rajendra Place, New Delhi – 110 008. https://hcservices.ecourts.gov.in/hcservices/

3. The Zonal Manager, Punjab and Sind Bank, Zonal Office, Spencer Towers, 1st Floor, 770-A, Anna salai, Chennai – 600 002.+3ccs to Mr.R.Subramanian, Advocate Sr 54325,54326 and 54328+1cc to M/s.S.Vijayadharani, Advocate Sr 54217BVR (CO)km/11.9.W.P. Nos.12642, 13875 and13876 of 2004 and connected W.P.M.P.Nos.14750, 16322,16323 and 18315/2004