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Himachal Pradesh High Court · body

2004 DIGILAW 138 (HP)

RAM DASS v. SYNDICATE BANK

2004-06-30

LOKESHWAR SINGH PANTA

body2004
JUDGMENT Lokeshwar Singh Panta, J.: The petitioner has filed this writ petition under Articles 226/227 of the Constitution of India seeking the following reliefs: "(i) That the impugned order dated 8.3.1995 (Annexure P-3) withdrawing the services of the petitioner as attender in the respondent-Bank may very kindly be quashed and set aside. (ii) That suitable directions may kindly be issued to the respondent-Bank not to disengage the petitioner from the post of Attender and allow the petitioner to continue to work as Attender. (iii) That as the petitioner has already put in more than 5 years continuous service as Attender, the respondent may kindly be directed to regularize his services as Attender. (iv) That any other relief this Honble Court deems tit and proper in the facts and circumstances mentioned herein above may kindly be granted in favour of the petitioner in the ends of law and justice." 2. It is the case of the petitioner that he was appointed as part-time Sweeper in Shimla Branch of the respondent-Bank. By order dated 7.2.1.989 (Annexure P-1) the petitioner was confirmed as Sweeper w.e.f. 1st July, 1988. The petitioner stated that one post of Attender was lying vacant in the respondent-Bank against which he was temporarily appointed by the Manager of the respondent-Bank, Shimla Branch vide order dated 2.2.1990 (Annexure P-2). He discharged his duties of Attender continuously for a period of five years with utmost sincerity. The Manager of respondent-Bank, Shimla Branch in terms of order dated 8.3.1995 (Annexure P-3) withdrew the work of Attender from him w.e.f. 8.3.1995. 3. The petitioner has challenged the impugned order (Annexure P-3) by way of this writ petition, inter alia, on the grounds that the impugned order was in violation of Section 25-f of the Industrial Disputes Act, 1947 and the respondent-Bank has acted arbitrarily and illegally against the well defined national policy of insuring jobs for Schedule Caste candidates to which the petitioner belongs thereby depriving him to discharge the duties of Attender and ignoring his claim for regularization against such post. 4. 4. In reply to the writ petition, Shri Mahesh Kumar Jain, Manager Shimla Branch of the respondent-Bank, raised preliminary objections that the writ petition is highly misconceived and not maintainable before this Court as the petitioner being a workman has to raise the dispute before the Industrial Tribunal/Labour Court under the Industrial Disputes Act, 1947 and disputed facts are involved in the present case for which evidence has to be led by the parties, this Court will not go into those disputed questions of facts in exercise of the jurisdiction under Article 227 of the Constitution of India. On merits, the respondent-Bank has admitted that the petitioner was employed in the Bank as part-time Sweeper and his services in the said capacity were confirmed w.e.f. 1.7.1988 in the pay scale of Rs. 430/- per month. The stand of the respondent-Bank is that the petitioner was asked to perform the duties of Attender by the Manager of Shimla Branch of the Bank, during the vacancy caused due to the leave/absence of regular Attender as there are only two regular posts of Attender in Shimla Branch fixed by the respondent-Bank in consultation with and as per the guidelines of the Indian Banks Association. The respondent-Bank, submitted that Manger of the Branch instead of withdrawing the work of Attender temporarily entrusted to the petitioner has allowed him to continue to perform the duties of Attender in total disregard to the rules/guidelines enforce and the petitioner through this writ petition cannot be held entitled to seek regularization of his services as Attender to perpetuated the illegality committed by the Manager of the Branch. It is the stand of the respondent-Bank that necessary action under the rules had already been taken against all the erring officials who were responsible for unauthorized entrustment of temporary duty to the petitioner. According to the respondent-Bank there is no termination of services of the petitioner but on the other hand he has been reverted back to his original post of Sweeper against which he has been confirmed against the sanctioned strength of workmen staff in Shimla Branch. Respondent-Bank further stated that as per settlement arrived at in the joint meeting of the respondent-Management with the Syndicate Bank. Respondent-Bank further stated that as per settlement arrived at in the joint meeting of the respondent-Management with the Syndicate Bank. Employees Union held on 2nd/3rd April, 1987 on the basis of which a circular dated 21.7.1987 a copy of which is filed herewith as Annexures R-2, it has been mutually resolved that the part-time Sweeper may be appointed temporarily as an Attender in leave vacancy only if the part-time Sweeper has passed 5th Standard and not otherwise. The petitioner has no legal right to seek his regularization out of turn against the post of Attender except from the panel which has been prepared by the respondent-Management for this purpose. It was further resolved that 25% of the vacancies of Attenders are ear-marked for part-time Sweepers and this quota will be strictly in terms of understanding with Syndicate Bank Employees Union and no weightage is admissible for services rendered as Attender temporarily in leave vacancies. It is further case of the respondent-Bank that there is no post of Attender lying vacant in the Branch at Shimla as two Attenders according to the sanctioned strength are already working against the said posts. On these premises the respondent-Bank prays for the dismissal of the writ petition. 5. In rejoinder to the reply filed fey respondent-Bank, the petitioner has reiterated and reasserted his averments made in the writ petition. Further he stated that under similar consideration, the respondent-Bank has regularized the services of several employees in different cadres and the discriminatory treatment meted out to trie petitioner is violative of his fundamental rights besides being violative of the specific statutory provisions. He has reasserted that the respondent-Bank had appointed the petitioner against the vacant post of Attender, and as the petitioner also is qualified to be appointed as Attender, there is absolutely no reason why the respondent-Bank should remove the petitioner from the said post when he has already completed five years continuous services against the said post and has gained valuable experience which is certainly usable and in the broader interest of the respondent-Bank. The petitioner has placed on record a copy of pay roll (Annexure: P-4) of the employees of the respondent-Bank to contend that there were three posts of Attender in the year 1989 in the Branch, out of whom one Shishu Pal Attender was promoted to the post of Clerk some time in February, 1990 and against his vacant post, the respondent-Bank appointed the petitioner being qualified and eligible person. He stated that the stand of the respondent-Bank that there are only two posts of Attenders at its Branch at Shimla is factually incorrect. He further stated that it was the duty of the respondent-Bank to make the permanent appointment within three months as stipulated in Clause 20.8 of the Bipartite Settlement (Annexure: P-5), the respondent-Bank considering it fit and proper to allow the petitioner to continue uninterruptedly in the said vacant post for more than five years and this fact shows that the respondent-Bank need a permanent hand to fill-up the vacant post of Attender on permanent basis. It is his further case that the respondent-Bank keeping in view the existing load work in August, 1989, appointed third Attender, namely, Sardar Singh through Employment Exchange and continued to carry on the work of three permanent posts of Attender till February, 1990. He also stated that the Branch Manager has the powers and authority to allow the petitioner to continue in the post for the last more than five years. 6. The respondent-Bank filed sur-rejoinder affidavit in opposition to the rejoinder of the petitioner in which it is reasserted that due to office exigencies the services of the petitioner were utilized by the local Management as Attender on ad hoc basis from time to time. However, inspite of specific instructions to discontinue such temporary entrustment; the local heads who functioned during the period 1990 to 1995 not only continued the engagement of the petitioner as a temporary Attender unwarranted but also continued it unauthorizedly for which the Management has taken a serious view. It is further stated that in the days of high competition, it would be desirable on the part of the Management to cut/reduce the expenditure to improve the profitability of the Bank for which the respondent-Bank has taken several measures to curb the unnecessary expenditure. It is further stated that in the days of high competition, it would be desirable on the part of the Management to cut/reduce the expenditure to improve the profitability of the Bank for which the respondent-Bank has taken several measures to curb the unnecessary expenditure. The respondent-Bank also stated that there are several other employees in its Bank in the cadre of the petitioner who are better qualified and better experienced and more competent than the petitioner to perform the duty of Attender. It is stated that as per the rules and guidelines of the Bank, the Management of respondent-Bank can fill-up the vacancies of the Attender only through the candidates sponsored by the Employment Exchange except while appointing persons on compassionate grounds and by promotion from part time employees cadre of 25% of the vacancies that too on the basis of seniority. For the purpose of determining the seniority of the employees, zone-wise list of the employees has to be taken as a Unit and promotion cannot be given to an employee by taking the Branch as one Unit. 7. The petitioner has filed additional affidavit in support of the writ petition stating therein that during the pendency of the writ petition in the month of March, 1998, one regular Attender was promoted to the post of Clerk thereby creating on permanent post of Attender. He submitted a written representation dated 7.3.1998 to the Assistant General manager, Syndicate Bank Zonal Office, New Delhi through Branch Manager for appointing him on permanent basis against the said post. One more person Tara Chand working as Attender was promoted to the post of Clerk on 27.9.2003 and the said post is still lying vacant and as such the petitioner can be easily regularized against the vacant post as he is otherwise eligible and experienced hand. 8. In its reply to the additional affidavit of the petitioner, the respondent-Bank has stated that the post of Attender which has fallen vacant is to be filled up as per Bipartite settlement so reached intese employer and employee and the petitioner can only claim the eligibility from the general pool of the part-time Sweeper and further the Management is under no obligation to fill up the post, on account of promotion which can only be filled in view of exigencies of services. The representation made by the petitioner to the respondent as per the averments of the respondent-Bank does not carry any weightage and it stood ignored. It is also submitted that Tara Chand has since been promoted as Clerk being holding permanent post of Attender, the petitioner cannot lay any claim to the said post of Attender since he is not eligible for the post in view of the Bipartite Settlement where only 25% quota is being provided subject to the eligibility and no weightage is to be attached to the service so rendered by the petitioner temporarily in leave vacancy. 9. I have heard learned Counsel for the parties in the above stated premises. 10. Both learned Counsel at the outset have frankly consented and in my view rightly so, that Section 25-F of the Industrial Disputes Act would not only in the present case as the claim of the petitioner involved in this petition is mainly for his regularization against the post of Attender. 11. Mr. B.N. Misra, learned Counsel for the petitioner contended that the petitioner has been appointed by the Competent Authority of the respondent-Bank against the vacant regular post of Attender and he discharged his duties against the said post w.e.f. 2.2.1990 till 8.3.1996 without brake in service, therefore, order dated 8.3.1995 (Annexure P-3) is illegal, arbitrary and in violation of Articles 14 and 16 of the Constitution of India. In support of this submission, he placed reliance on a number of decided cases to which a reference will be made hereinafter. 12. Per contra, Mr. S.R. Sharma, learned Counsel appearing on behalf of respondent-Bank contended that the petitioner was asked by the Manager of the Branch of the respondent-Bank to temporarily, discharge the duties of Attender w.e.f. 2.2.1990 against the leave , vacancy in the exigencies of service and he has been allowed to continue to work as temporarily Attender for long period by the Manager without any authority and his claim for regularization against the post of Attender cannot be accepted. 13. I have given my anxious and thoughtful consideration to the respective contentions of the learned Counsel for the parties. 14. It is not in dispute that the petitioner was appointed as part-time Sweeper by the respondent-Bank and he was confirmed in the said capacity w.e.f. 1.7.1998 vide letter dated 7.2.1989 (Annexure P-1). 13. I have given my anxious and thoughtful consideration to the respective contentions of the learned Counsel for the parties. 14. It is not in dispute that the petitioner was appointed as part-time Sweeper by the respondent-Bank and he was confirmed in the said capacity w.e.f. 1.7.1998 vide letter dated 7.2.1989 (Annexure P-1). The Manager of the respondent-Bank Branch at Shimla vide memorandum dated 2.2.1990 (Annexure P-2) directed him to work as temporary Attender w.e.f. 2.2.1990 and till further orders against the vacancy created/fallen vacant in the basic pay of Rs. 430/- plus usual allowances per month. He continued to discharge the temporary duties of Attender till 8.3.1995, when the Manager of the Shimla Branch withdrew the works of temporary Attender entrusted to him vide memorandum dated 8.3.1995 (Annexure P-3) directing him to work as part-time worker in the Branch. The respondent-Bank has placed on record a Photostat copy of the staff position of Shimla Branch (Annexure R-1). A perusal of this document reveals that there were only two regular posts of Attenders available at the Shimla Branch as on 1.1.1990. The respondent-Bank has placed on record the details of Attenders w.e.f. 1.1.1990 and leave position of Syndicate Bank Shimla Branch marked (Annexure R-3) with its sur-joinder. A perusal of Annexure R-3 reveals that there were two regular Attenders working in Shimla Branch in the month of February, 1990, cut of them Shishu Pal was promoted as Clerk w.e.f. 1.2.1990 whereas one Sardar Singh was a probation Attender. In the year 1991 there were only two regular Attenders, namely, Shyam Lai and Sardar Singh in the Branch till 1991. Shyam Lai was transferred in July, 1991 to Dayalpur Branch and Saroj Kumar came in his place and joined his duties on 22.7.1991 whereas Sardar Singh was on probation till 1995. The petitioner was only asked to work as temporary Attender w.e.f. 2.2.1990 against the leave vacancy until further orders by the "Manager of the Shimla Branch. As per clause 20.8 of the Bipartite Settlement between certain, banking companies, a temporary workman may also be appointed to fill up a permanent vacancy provided that such temporary appointment shall not exceed a period of three months during which the Bank shall make arrangements for filling up the vacancy permanently. As per clause 20.8 of the Bipartite Settlement between certain, banking companies, a temporary workman may also be appointed to fill up a permanent vacancy provided that such temporary appointment shall not exceed a period of three months during which the Bank shall make arrangements for filling up the vacancy permanently. If such a temporary workman is eventually selected for filling up the vacancy, the period of such temporary employment will be taken into account as part of his probationary period. Pursuant to the deliberation held in its joint meeting with the Syndicate Bank Employees Union on 2nd/3rd April, 1987, circular No. 250/87/BC/PD/42/IRS dated 21.7.1987 (Annexure P-6) was issued by Assistant General Manager (PER) of the respondent-Bank in regard to entrustment of sub-staff duties to part-time Sweepers during leave vacancy of regular sub-staff. In answer to question No. 3 of the query besides other items of the questions, it was decided that if a Branch has more than one Attender, the Branch Manager shall decide whether or not a substitute should be appointed during the absence/leave of one of them. If appointing a temporary Attender during such period is unavoidable in the exigencies of office, then the senior most eligible part-time Sweeper will be appointed temporarily in the leave vacancy and seniority will be reckoned on the basis of joining Banks service. In answer to the last question it was decided that selection of part-time sweepers/Scavengers for posts of Attenders against the 25% quota will be strictly in terms of understanding with Syndicate Bank Employees Union vide circular No. 39/81/BC/PD/13/IRD dated 26.2.1981. It was also mentioned that no weightage is admissible for service rendered as Attender temporarily in leave vacancies. 15. On consideration of the factual situation based upon the material on record, the services of the petitioner were utilized by the local Management as an Attender in the exigencies of service against the leave vacancy and his services were not discontinued inspite of the specific instructions of the respondent-Bank by the Manager of the Branch which action of the authority concerned was found unwarranted and unauthorized for which the Management had taken serious view. The petitioner had been paid all the benefits of Attender for all the days for which he had worked as temporary Attender. The petitioner was not holding the substantive post of an Attender but was also a confirmed part-time Sweeper. The petitioner had been paid all the benefits of Attender for all the days for which he had worked as temporary Attender. The petitioner was not holding the substantive post of an Attender but was also a confirmed part-time Sweeper. The seniority of part-time employees is to be mentioned Zone-wise and 25% of the vacancies of Attender as per circular No. 250/87/BC/PD/42/IRS dated 21.7.1987 (Annexure P-6) had to be filled up as per the seniority taking one Zone as a Unit and not the Branch as a Unit. It is the specific defence of the respondent-Bank that there are several other employees working as part-time Sweepers in the zone who are seniors to the petitioner and therefore, the petitioner cannot be promoted by ignoring the seniority of other part-time Sweepers simply because he un-authorizedly and without authority has been permitted to continue to discharge the duties of Sweeper temporarily during the leave vacancy for a period of five years by the Manager of the Shimla Branch. If the Manager of the Shimla Branch permitted the petitioner to continue to work temporarily against the post of Attender exceeding the period of three months as prescribed under clause 20.8 of Bipartite Settlement (Annexure P-5), un-authorisedly, this Court cannot put its seal of approval to legalize the unlawful act of the authority of the bank and the court cannot become a party to perpetuate the illegality. The petitioner cannot claim regularization of his services as an Attender merely on the ground that he had worked against the post of Attender for a period of about five years as the petitioner was not appointed against the sait post, on regular basis. His claim for promotion to the post of Attender has to be considered along with other part-time Sweepers on the basis of seniority maintained by respondent-Bank Zone-wise. The promotion of the part-time Sweepers to the post of Attender has to be made by the respondent-Bank in accordance with the terms and conditions contained in Bipartite Agreement. 16. Cases relied upon by Mr. B.N. Misra are being referred to now. 17. In Bhagwati Prasad v. Delhi State Mineral Development Corporation, 1990(1) Supreme Court Cases 361. The promotion of the part-time Sweepers to the post of Attender has to be made by the respondent-Bank in accordance with the terms and conditions contained in Bipartite Agreement. 16. Cases relied upon by Mr. B.N. Misra are being referred to now. 17. In Bhagwati Prasad v. Delhi State Mineral Development Corporation, 1990(1) Supreme Court Cases 361. Their Lordships of the Supreme Court have held that once appointments were made as daily rated workers and they were allowed to work for a considerable length of time, it would be hard and harsh to deny them the confirmation in the respective posts on the ground that they lack the prescribed educational qualifications. 18. In All Manipur Regular Posts Vacancies Substitute Teachers Association v. State of Manipur, AIR 1991 Supreme Court 2088, their Lordships directed the State Government to consider the cases of substituted hoc teachers of Education Department working for last several years of regularization before making direct recruitment could be appointed only if there was any additional vacancy or if any vacancy existed after process of regularization was competed. 19. In Jacob M. Puthuparambil and others v. Kerala Water Authority and others, AIR 1990 Supreme Court 2228, it was held that the employees who were appointed by way of stop-gap arrangement till regular appointments were made continued for more than two years and possessing requisite qualifications were entitled for regularization under the Services Rules framed under Article 309 of the Constitution of India. 20. In Smt. Vijay Goel and others v. Union of India and another, 1997(5) SLR 803, their Lordships while dealing with Safdarjang Hospital (Class III posts) Recruitment Rules, 1973 held that as the ad hoc appointments were made in accordance with the Rules which appointments continued for a number of years the same could to be treated as ad hoc or fortuitous. 21. 21. In Sudarshan Das v. United Bank of India and others, 1992(1) S.L.R. (Calcutta) 327, the learned Single Judge of Calcutta High Court in the peculiar facts and circumstances of that case held that the petitioner had been rendering service of a Sweeper to the Bank for 257 days without brake and there was a vacancy of permanent post for him, on that count alone, regardless of the fact as to whether the recruitment policy of the bank provided for a different method and mode of recruitment the service of the petitioner was to be regularized. 22. In Baleshwar Dass and others v. State of U.P. and others, 1980(4) Supreme Court Cases 226, their Lordships while considering the words and phrases of temporary and permanent posts observed that appointment made for indefinite long period after satisfying all the tests for regular appointment and in consultation with Public Service Commission would be in substantive capacity. Such temporary appointees on completion of probation become members of that service. Temporary post under the Rules was as much a post in the cadre of the services, so entire length of officiating service of such temporary servants to be considered in determining their seniority on the service vis-a-vis those holding permanent posts. In Chiraunji Lal v. State of U.P. and others, 2002 LAB I.C. 1507, the Division Bench of the Allahabad High Court observed that daily wagers working continuously for three years were held entitled to regularization in terms of Government instructions of 25.10.1989 and Section 2(g) of U.P. Industrial Disputes Act, 1947. One can have possibly no quarrel with established proposition of law that a daily wager who has continuously worked for long period, is entitled for regularization if the vacancy against which he was working as daily wager still exists. The ratio of the above referred to judgments cannot be uniformly applied in the peculiar facts and circumstances of the case in hand. The petitioner was temporarily asked to perform the duties of Attender against the leave vacancy. There were only two posts of regular Attenders in the Branch Shimla against which the incumbents were appointed. The petitioner was holding substantive post of part-time Sweeper and vide memorandum dated 8.3.1995 (Annexure P-3), the Manager of Shimla Branch had withdrawn the duties of Attender entrusted to the petitioner and he was directed to work as part-time. Sweeper against it & substantive post. The petitioner was holding substantive post of part-time Sweeper and vide memorandum dated 8.3.1995 (Annexure P-3), the Manager of Shimla Branch had withdrawn the duties of Attender entrusted to the petitioner and he was directed to work as part-time. Sweeper against it & substantive post. Thus, the petitioner has no right whatsoever to claim regularization against the post of Attender. The contentions made by the learned Counsel for the petitioner do not merit acceptance. : 23. No other point was urged by the learned Counsel for the parties. 24. For the abovesaid reasons, there is no merit in this writ petition and it is accordingly dismissed with no order as to costs. The stay order granted by this court stands vacated.