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2016 DIGILAW 1285 (HP)

Kalu Ram v. Punjab National Bank

2016-07-05

SANDEEP SHARMA

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JUDGMENT : Sandeep Sharma, J. By way of present petition, petitioner has prayed for the following reliefs:- (i). That writ in the nature of certiorari may kindly be issued whereby quashing Annexure P-5 being illegal. (ii) That writ of mandamus may kindly be issued to the respondent bank, directing them to treat the petitioner on regular rolls since 1973, thereby entitling the petitioner for all service benefits which the employees on regular roles are entitled to such as; salary arrears of salary and thereafter all retirement benefits, pension etc. on his retirement, in the interest of justice. (iii) That entire record pertaining to the present case may please be summoned for kind perusal of this Hon’ble Court. (iv) That the cost of the writ petition may kindly be granted in favour of the petitioner and against the respondents. (v) Any other appropriate writ, order or direction which this Hon’ble Court may deem fit, just and proper in the facts and circumstances of the case, may kindly be issued/passed in favour of the petitioner, in the interest of justice and fair play. 2. Briefly stated facts as emerge from the record are that the petitioner was engaged as Sweeper in the year, 1973 in the Branch of Punjab National Bank, Lubh, Tehsil Jawali, District Kangra. The petitioner joined his duty as Sweeper on 1.1.1973 and Rs. 30/- was paid as salary, at the time of joining. As per petitioner, he had been continuously working as Sweeper with the respondent-bank right from his initial date of appointment i.e. 1.1.1973 till date and during this period his salary had been increased from time to time. At the time of filing petition, petitioner was getting salary of Rs. 1500/- per month. The petitioner averred in the petition that he had been serving with the respondent bank for the last more than 36 years but no steps whatsoever, have been taken by the respondent-bank to regularize his services by the respondent bank. Petitioner further submitted that during his service with bank, he worked with utmost satisfaction of the respondent bank and during this period no complaint, whatsoever, was ever made against the petitioner but just to the misfortune of the petitioner, he has been dealt in most unreasonable, arbitrary and unjust manner by the respondent-bank. His services has not been regularized till date. His services has not been regularized till date. He also averred in the petition that during this period of 36 years, respondent bank took work of Peon from him and as such, he was compelled to file Civil Writ Petition bearing No. 5064/2009, titled as Kalu Ram Vs. Punjab National Bank before this Court. This Court vide judgment dated 24.2.2010 (Annexure P-3) directed him to make a representation to the respondents within a period of 1 month with a direction to the respondents to decide the same within a period of three months. The petitioner in terms of judgment dated 24.2.2010 made representation to the authorities of the respondent bank but during the pendency of the representation, his services were put to an end and he was given a sum of Rs.22,403/- as gratuity benefits dues. Respondents vide order dated 5.6.2010 (Annexure P-5) rejected the representation of the petitioner on the ground that he was engaged in the year, 1973 in the respondent bank but since his salary was being paid as per Sastry Award/Bipartite settlement, his services cannot be regularized. Respondents also observed that petitioner was appointed as part time Sweeper and as per the guidelines applicable under Sastry Award, he is not entitled for any service benefits except the gratuity which stands duly paid in his favour after his retirement w.e.f. 30.4.2010. The present petitioner being aggrieved with the order dated 5.6.2010, whereby his representation was rejected by the respondents, approached this Court by way of present writ petition. As per the petitioner office order dated 5.6.2010 is not sustainable in the eyes of law, especially when the petitioner has been continuously working with the respondent bank since 1973 and during this period he did not work as Sweeper or part time worker but had been rendering services of Peon as directed by the authorities in the said branch from time to time. The petitioner further contended that technical objections being taken at this stage by the respondent bank are highly illegal and erroneous and cannot be allowed to use to defeat the legitimate claim of the petitioner. The petitioner further contended that technical objections being taken at this stage by the respondent bank are highly illegal and erroneous and cannot be allowed to use to defeat the legitimate claim of the petitioner. It is also contended by the petitioner in the petition that despite his being working with the respondent bank for the almost 36 years, respondents have failed to regularize his services and such action of the respondent Bank is highly arbitrary, illegal and unsustainable in the eyes of law being violative of Articles 14 and 16 of the Constitution of India and same deserves to be rectified in accordance with law. 3. As per the petitioner, at the time of his initial appointment with the bank, there were no schemes/guidelines applicable under Sastry Award and as such, respondents cannot be allowed to take advantage/benefit, if any, of the so called Sastry Award that too to defeat the legitimate claim of the petitioner. 4. Respondents by way of detailed reply refuted the claim put forth by the petitioner. Respondents have stated in the reply that petitioner was never engaged as a regular sweeper in the Branch of the bank, rather he was engaged as a part time sweeper for cleaning the premises of the Bank under the provisions of Para 123 of Sastry Award and para 5.191 of Desai Award and Bipartite Settlements arrived at between the banks and its workmen from time to time on consolidated monthly wages, which were further increased as per Bipartite Settlement from time to time. Respondents also refuted the allegations of the petitioner with regard to working hours. As per respondent working hours of part time employees were less than 6 hours a week which works out to about 1 hour a day. Respondents also made available on record the extract of Sastry Award and Desai Award (Annexures RA and RB) and Bipartite Settlement (Annexure RC). Respondents also stated in reply that the services and wages of the petitioner are/were regulated under the Sastry/ Desai Awards and Bipartite Settlements and since the petitioner worked as a part time sweeper for less than six hours in a week just to clean the bank premises, any claim being put forth by the petitioner for regularization is not tenable and cannot be accepted at all. 5. 5. Respondents also contended in the reply that since petitioner was engaged as part time sweeper and he was not a regular employee of the bank, his services could not be regularized like other employees of the bank. Respondents categorically denied the contention of the petitioner that his services were utilized by the bank as a Peon. As per respondents, petitioner is an illiterate person and for the post of peon in the bank minimum plus two qualification is required with the knowledge of reading/writing of Hindi and English language. It also emerge from the reply of the respondents that services of the petitioner has been dispensed with after completion of age of 60 years on 30.4.2010 and in terms of the Bipartite Settlements he has been paid gratuity as per the provisions of the Bipartite Settlements. As per the respondents, the petitioner was engaged in the bank as part time sweeper on consolidated wages to clean the bank premises and his appointment was made as per the guidelines of Sastry and Desai Awards and accordingly he was paid wages as per the Bipartite settlements. As per respondents since the petitioner was engaged in terms of the guidelines of awards mentioned hereinabove, he is not entitled for any service benefits which otherwise is available to a regular employee. 6. Mr. Naresh Verma, learned counsel appearing on behalf of the petitioner vehemently argued that the action of the respondent-bank in as much as not regularizing the services of the petitioner is highly arbitrary, illegal and is violative of Articles 14 and 16 of the Constitution of India. He contended that the petitioner without any brake served the respondent bank continuously for 36 years and as such, he is/was eligible for regularization. Learned counsel for the petitioner forcibly contended that the respondent bank being creation of statute performing/functioning/public function has acquired the status of an of welfare state and is not expected to act in arbitrary manner, rather it is expected to take decision in the interest of its employee. During arguments having been made by him, he invited the attention of this Court to impugned order dated 5.6.2010 passed by the respondents on the representation filed by him in terms of the judgment passed by this Court to demonstrate that no opportunity of being heard was ever granted to the petitioner by the respondent-bank while passing order dated 5.6.2010. During arguments having been made by him, he invited the attention of this Court to impugned order dated 5.6.2010 passed by the respondents on the representation filed by him in terms of the judgment passed by this Court to demonstrate that no opportunity of being heard was ever granted to the petitioner by the respondent-bank while passing order dated 5.6.2010. He contended that bare perusal of the impugned order dated 5.6.2010 itself suggest that order has been passed in slip shod manner without taking into consideration the fact that the petitioner continuously served the respondent bank for 36 years. 7. Mr. Ajay Kumar, learned Senior Advocate duly assisted by Mr. Dheeraj Vashisht, Advocate supported the order dated 5.6.2010 passed by respondent Punjab National Bank in compliance to the judgment dated 24.2.2010 passed by the Division Bench of this Court. Mr. Sood, strenuously argued that the services of the petitioner can/could not be regularized by the respondent bank in view of the fact that he was appointed as part time sweeper for cleaning the premises of the Bank under the provisions para 123 of Sastry Award, para 5.191 of Desai Award and Bipartite Settlements arrived at between the Banks and its workmen from time to time on consolidated monthly wages. He forcibly contended that the petitioner was not appointed as a regular employee of the bank and as such his services as well as wages could not be compared with the regular employees regulated by the respondent bank specifically adhering to Recruitment and Promotion Rules. It is contended that since the appointment and wages of the petitioner are/were regulated under the Sastry and Desai Awards, his services can/could not be regularized by the respondent bank. Mr. Sood, vehemently argued that the petitioner was not a regular employee of the bank and at best could be termed as a workman. He further argued that in the matter of employment/determination of service dispute of workmen, matter is to be governed under provisions of the Industrial Disputes Act, 1947 in view of the Sastry award and Bipartite Settlements arrived at between the banks and its workmen and as such, the present petition filed by the present petitioner is not maintainable because there is an alternate efficacious remedy available to the petitioner by way of approaching the appropriate Court of law, as envisaged under the Industrial Disputes Act. He forcibly contended that since the petitioner was engaged purely on temporary basis in terms of the aforesaid awards, petitioner has no right whatsoever, to claim regularization. 8. I have heard the learned counsel for the parties and have gone through the record of the case. 9. Since specific objection with regard to the maintainability of the present petition has been raised by the counsel representing the respondent, it would be appropriate for this Court to decide the issue of maintainability at first instance before adverting to the merits of the case. 10. Careful perusal of the pleadings available on record clearly suggests that the petitioner was engaged as a Sweeper in the year, 1973 i.e. on 1.1.1973 and at that time he was paid salary at the rate of Rs. 30/- per month. It is also undisputed that the petitioner had been working continuously as sweeper with the respondent bank right from his initial appointment i.e. 1.1.1973 till his retirement i.e. 30.4.2010. As per own admission of the petitioner, he was getting salary to the tune of Rs. 1500/- per month at the time of filing of the present petition i.e. 25.7.2010. As per record, the petitioner stands retired from services w.e.f. 30.4.2010, whereas the present petition has been filed on 25.7.2010. 11. This Court solely with a view to ensure that no injustice is caused to the petitioner perused the entire record available on file but it could not lay its hand to any documents suggestive of the fact that the petitioner was engaged by the respondent Bank on regular basis, rather perusal of the document available on record clearly suggests that respondent Bank engaged the petitioner as part time sweeper for cleaning the premises of the bank under the provisions/para 123 of Sastry Award, para 5.191 of Desai Award and Bipartite Settlements arrived at between the banks and its workmen from time to time on consolidated monthly wages, which were further increased from time to time in terms of Bipartite Settlement. It also emerge from the record that the petitioner used to work as part time employee for less than 6 hours in a week. It also emerge from the record that the petitioner used to work as part time employee for less than 6 hours in a week. The respondents have placed on record All India Industrial Tribunal (Bank Disputes) award in the Industrial Disputes between certain Banking Companies and their workman to demonstrate that appropriate remedy, if any, available to the petitioner for redressal of his grievances is under Industrial Disputes Act, 1947, not by way of present petition filed under Article 226 of the Constitution of India. 12. Petitioner has neither filed any rejoinder to the reply filed by the respondent Bank nor he has made available on record any document suggestive of the fact that he was engaged by the respondent bank on regular basis and his services are not regulated by Sastry/Desai Awards and Bipartite Settlements as mentioned above. 13. Perusal of Annexures RA and RB annexed with the reply filed by the respondent bank clearly depicts that there is All India Industrial Tribunal Bank Disputes) award passed under the Industrial Dispute Act to decide the dispute, between certain Banking Companies and their workmen and as such banks and its workmen are bound by the provisions of this award. Besides above there is Bipartite Settlements arrived at between the bank and its workmen, which is binding upon both the parties. Respondents by way of Annexure RB has also placed on record Bipartite Settlements arrived at between the banking companies and their workmen to demonstrate that disputes, if any, between workmen and bank is to be adjudicated in terms of Industrial Disputes Act, 1947. This Court after perusing the Annexures RA and RB has no doubt in any manner that dispute, if any, between the workmen and Banking Company is liable to decided in accordance with provision of Industrial Tribunal Disputes Act, 1947. 14. Careful perusal of the aforesaid Annexures suggest that since Bipartite Settlements has been arrived at between the Managements of 54-‘A” Class Banks as represented by the Indian Banks’ Association and their workmen as represented by the All India Bank Employees Association and the National Confederation of Bank Employee, the terms and conditions contained in the settlement are binding upon the parties. 15. 15. Close scrutiny of the aforesaid settlement arrived at between the Management of the various banks and their workmen reveals that the settlement has been arrived at under Section 2(p) and Section 18 (1) of the Industrial Disputes Act, 1947 read with Rule 58 of the Industrial Disputes (Central) Rules, 1957. It also suggest that 52 Banks were party to the settlements, which were admittedly “A” class banks at the relevant time and were listed in schedule I to the said memorandum of Settlement. Clause 4.5 of the Settlement on the Industrial Disputes between certain Banking Companies and their Workmen clearly suggest that part time workmen are engaged in terms of paragraph 5.191 of the Desai Award, which is specific case of the respondent bank. The Sastry award, Desai award and Bipartite Settlement as discussed above, only deals with the terms and conditions of the workmen employed by the banks. 16. Bare perusal of the Bipartite Settlements dated 10th April, 2002 clearly demonstrate that settlement as referred hereinabove has been arrived under Section 2(p) and section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of the Industrial Disputes (Central) Rules 1957 and thereafter aforesaid Sastry and Desai awards regulating the service conditions of the workmen employed by the bank have been passed. But the fact remains that the aforesaid settlement has been arrived at between the Management of the banks as well as their workmen under Industrial Disputes Act, meaning thereby alternative remedy, if any, available to the present petitioner being workmen is to approach appropriate authorities as envisaged under Industrial Disputes Act, 1947. The rights of the workmen have been specifically defined under the aforesaid Act and complete mechanism is provided to enforce the provisions contained in the Act. Hence, this Court is of the view that there is considerable force in the contention put forth on behalf of the respondent bank that present petition is not maintainable under Article 226 of the Constitution of India since the service conditions of the petitioner are\were governed by the Sastry Award and Desai Award. Hence, appropriate remedy, if any, for redressal of petitioner’s grievance is under the Industrial Dispute Act and not by invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. Hence, appropriate remedy, if any, for redressal of petitioner’s grievance is under the Industrial Dispute Act and not by invoking extraordinary jurisdiction of this Court under Article 226 of the Constitution of India. As far as the order dated 5.6.2010 passed by the respondent bank in compliance to the judgment dated 24.4.2010 passed by Division Bench of this Court is concerned, this Court very carefully examined the order dated 5.6.2010 to ascertain the genuineness and correctness of the arguments having been made on behalf of the petitioner that no opportunity of being heard was afforded to him at the time of passing of the order dated 5.6.2010 and found that there is no force in the aforesaid contention put forth on behalf of the petitioner. Pursuant to judgment dated 24.2.2010 passed by the Division Bench of this Court, petitioner Kalu Ram filed detailed representation on 16.3.2010 praying therein to treat him on regular rolls since 1973 and pay him all service benefit i.e. salary, arrears of salary, retirement benefits and pension etc. Respondent bank while dealing with the representation dated 16.3.2010 filed by the petitioner dealt with each and every aspect of the matter and answered all the issues raised on behalf of the petitioner and as such, this Court is unable to accept the contention of not being heard put forth by the petitioner. It has been categorically mentioned in order that since the petitioner was paid consolidated wages as per Sastry award/Bipartite Settlement from time to time, there is no provisions in the Bipartite Settlements/Desai Award to regularize the services of part time workers engaged on consolidated wages to regular rolls. This court sees no illegality in the order dated 5.6.2010 passed by respondents, whereby claim put forth by the petitioner for his regularization has been rejected by the respondent bank. Since it stands duly proved on record that the petitioner was appointed as part time sweeper in terms of Sastry award and Bipartite settlements, this Court has no hesitation to accept the contention put forth on behalf of the respondent bank that remedy, if any, to the petitioner lies under the Industrial Disputes Act. Since it stands duly proved on record that the petitioner was appointed as part time sweeper in terms of Sastry award and Bipartite settlements, this Court has no hesitation to accept the contention put forth on behalf of the respondent bank that remedy, if any, to the petitioner lies under the Industrial Disputes Act. Once it stands proved that the service conditions of the workmen engaged by bank are governed by Sastry Award and Bipartite Settlement, which is admittedly passed under the Industrial Disputes Act, 1947, this court has no option but to conclude that the present petition is not maintainable and remedy, if any, for redressal of grievance of petitioner is available under the Industrial Disputes Act. Since Bipartite Settlement dated 10th April, 2002 has been arrived at under section 2(p) and section 18(1) of the Industrial Disputes Act, 1947 read with Rule 58 of the Industrial Disputes (Central) Rules 1957, the dispute, if any, between workmen and the bank is required to be resolved under Industrial Disputes Act not by way of wit petition. 17. After perusing the pleadings available on record, it is not disputed that the petitioner is a workmen under the Industrial Disputes Act and as such, he has an alternative remedy under the Industrial Disputes Act. Moreover, as has been noticed above, services of the petitioner have been dispensed with after completion of 60 years on 30.4.2010. Consequently, in view of the detailed discussion made hereinabove, this Court sees no illegality and infirmity in the order dated 5.6.2010 (Annexure P-5) passed by the respondent bank in terms of the judgment dated 24.2.2010 passed by the Division Bench of this Court and as such same is up held. In view of the above, the present writ petition is dismissed being not maintainable, reserving liberty to the petitioner to approach appropriate Court of law in terms of the provisions of the Industrial Disputes Act, 1947. No order as to costs.