Canara Bank v Central Government Industrial Tribunal cum Labour Court, Ernakulam & Smt. P.K Ammukkutty

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **TUESDAY, THE 16TH DAY OF AUGUST 2016/25TH SRAVANA, 1938** **WP(C).No. 14268 of 2006 (W)** **----------------------------** **PETITIONER(S): -------------** **CANARA BANK, CIRCLE OFFICE, M.G.ROAD, TRIVANDRUM-39, REPRESENTED BY, GENERAL MANAGER.** **BY ADV. SRI.M.P.SREEKRISHNAN** **RESPONDENT(S):** **--------------** **1. THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM.** **2. SMT. P.K.AMMUKUTTY, REP. BY THE STATE SECRETARY, CANARA BANK EMPLOYEES UNION,, B.BALAKRISHNA MENON SMARAKAM,, AMBUJAVILASAM ROAD, TRIVANDRUM-695 001.** **R, BY ADV. SRI.RENJITH THAMPAN R,R2 BY ADV. SMT.P.A.ANITHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16-08-2016 ALONG WITH WPC NO. 14318/2006, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC NO. 14268/2006** ## **APPENDIX** **EXT.P1: TRUE COPY OF THE CLAIM STATEMENT OF ID 5/2005** **EXT.P2: TRUE COPY OF THE WRITTEN STATEMENT FILED BY THE PETITIONER IN ID 5/05** **EXT.P3: TRUE COPY OF THE AWARD DT 30.12.2005 IN ID 5/05** **EXT.P4: TRUE COPY OF THE GUIDELINES DT 23.12.93** **EXT.P5: TRUE COPY OF THE NORMS DT 5.10.2000** **EXT.P6: TRUE COPY OF THE CHART DETAILING THE NUMBER OF DAYS WHICH THE 2ND RESPONDENT HAD WORKED FROM 2001 ONWARDS.** ## **RESPONDENTS EXHIBITS: NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **jma** ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) Nos.14268 of 2006 & 14318 of 2006 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 16[th] day of August, 2016 **==> picture [128 x 21] intentionally omitted <==** The above writ petitions challenge a common award of the Industrial Tribunal, in two disputes referred for adjudication. I.D 4/2005 was with respect to one Smt. A Bindu and I.D 5/2005 was with respect to one Smt.P.K Ammukkutty. The dispute referred was as to whether the demand of the Union, for absorption of both these employees, who were working as temporary part time employees, in a regular vacancy of part time employee; is justified or not. 2. In the claim statement filed by the Union in I.D 4/2005, it was contended that on 1.9.2002 a permanent vacancy of part time sweeper arose in the Mangalam Dam Branch of Canara Bank in which Smt. A Bindu was engaged temporarily WPC.No. 14268/2006 &14318/2006 : 2 : as a part time sweeper till 31.03.2004. She was paid the wages and her attendance were also marked and she worked continuously for a period of 500 days which also entitled her to get bonus. It was alleged that there was a practice in the petitioner Bank whereby, part time sweepers engaged temporarily were later absorbed to regular vacancies. The attempt of the management to fill up the permanent vacancy of part time sweeper in 2004, through the employment exchange, to a vacancy which arose in 2002 and where another was continued led to the present dispute. 3. In I.D 5 of 2005 almost similar allegations were raised in the claim statement and therein a permanent vacancy of part time sweeper was alleged to have arisen in the Sreekrishnapuram branch of the Bank in June 2003 and part time sweeper, Smt. P.K Ammukutty having been engaged WPC.No. 14268/2006 &14318/2006 : 3 : consequent to the retirement of the existing part time sweeper from 01.06.2003 till 03.02.2004. The termination of the said employment was also alleged to be unjustified and absorption claimed on identical grounds as raised in I.D 4 of 2005. 4. The management, in both the disputes filed written statements contending that there is no employeremployee relationship between the said temporary employees and the Bank. With respect to Smt. Bindu, it was alleged that her mother-in-law was the part time sweeper who was in employment earlier and only on the days in which the regular employee was on leave, the workman attended to the work as deputed by the regular employee. With respect to Smt.Ammukkutty, similar contentions were raised and she was also alleged to be a substitute on the days in which the regular employee was on leave. Both the workmen were said to be WPC.No. 14268/2006 &14318/2006 : 4 : over-aged at the time the dispute was raised and they were sent out of their temporary employment. 5. The learned Counsel for the petitioner Bank urged that there was no employer employee relationship between the workmen and the management. However the Tribunal found that but for raising a bland ground, the management failed to factually disprove the factum of employment with the Bank, which was admitted. The Management had not also pursued the contention during the evidence or argument, was the specific finding of the Industrial Tribunal in Ext.P3 award produced in both the writ petitions. 6. As to the employment of the two workmen, it was found on facts that they were not employed merely as substitutes and on the retirement of the regular part time sweepers, they were engaged for different periods as part time WPC.No. 14268/2006 &14318/2006 : 5 : sweepers. The contention that Smt. Bindu was engaged from 01.09.2002 to 31.03.2004 and Smt. P.K Ammukkutty from 01.06.2003 to 03.02.2004 were found to have been substantiated. Smt. Bindu was found to be working intermittently from 11.08.2001, presumably as a substitute for her mother-in-law. But on the retirement of the mother-in-law a permanent vacancy arose on 01.09.2004 in which Smt. Bindu was engaged as a part time sweeper till 28.02.2004. Likewise was the case of Smt. P.K. Ammukkutty. 7. Ext.P5 was the norms published by the Bank in 1993 regarding recruitment of part time employees and Ext.P6 was the revised norms. As per Ext.P5, the age limit for general candidates engaged on daily wages is between 18 and 22 and for absorption as PTE(part time employees), the age limit is 18 to 26 years. The norms also provided for a WPC.No. 14268/2006 &14318/2006 : 6 : relaxation in the age criteria by the Deputy General Manager. There is no minimum educational qualification and the maximum qualification required is a 5[th] standard. The norms also specifically prescribe that there is no necessity to approach the employment exchange for sponsoring candidates to fill up the vacancies of part time employees. The revised norms at Ext.M6 provided for upgradation of PTEs in the different scales applicable to the PTEs. The regular recruitment process as deposed by MW I-the management witness, is available in Ext.P5. It is based on these norms that the Industrial Tribunal found that the workmen whose cases were the subject matter of the dispute could be regularised in the regular vacancies, arising at two different points, in which vacancy they were continued for long. The Industrial Tribunal found that since the norms provided for relaxation WPC.No. 14268/2006 &14318/2006 : 7 : of age criteria by the DGM and there had been similar instances pointed out; wherein the part time employees found to be over aged as per Ext.P5 norms were also absorbed in permanent vacancy of part time employees, there could be absorption of the workmen in the dispute also. 8. The contention that only persons sponsored by the Employment Exchange could be considered for regularisation was found to be against Ext.P5 norms wherein clause (e) was noticed as clarifying the position to the contrary. It is in these circumstance that the Industrial Tribunal directed absorption of Bindu and Ammukkutty in the permanent vacancies of PTEs in Mangalam Dam Branch and Sreekrishnapuram Branch of the Canara Bank. This Court does not find any reason to interfere with the finding of fact entered into by the Tribunal and the directions issued based WPC.No. 14268/2006 &14318/2006 : 8 : on the norms for regularisation as framed by the Bank and applicable to the part time employees. 9.The learned Counsel appearing for the Bank relies on Secretary, State of Karnataka v. Umadevi - (2006) 4 SCC 1 to contend that the declaration made by the Constitution Bench would squarely cover the issue. It is to be noticed that in Uma Devi (supra) the back door appointments made, without following the regular procedure for selection to public employment and continuing them for long so as to enable a claim for regularisation on equitable principles, was frowned upon. Such employment termed by the Court as 'litigious employment' and the exercise of the powers under Article 226 of the Constitution of India to legitimise it, was held to be the scheme for as defeating very public employment envisaged by the Constitution. The caution sounded was WPC.No. 14268/2006 &14318/2006 : 9 : against the High Courts, thus invoking their wide powers to perpetuate illegalities, irregularities and improprieties thus scuttling the equal opportunity, guaranteed by the Constitution, in seeking public employment. The decision would not govern the present case wherein a dispute was referred for adjudication under the Industrial Disputes Act, 1947. The duly constituted Industrial Tribunal found on evidence adduced that the employment on part time is sanctioned by the norms and regularisation of those employed temporarily, at the discretion of the Management, again based on the norms was a permissible exercise, resorted to by the Management, in many instances, relaxing the upper age prescribed. 10. The learned Counsel appearing for the petitioner bank submits that while Sri. P.K Ammukkutty did WPC.No. 14268/2006 &14318/2006 : 10 : not turn up for employment, Smt. Bindu was employed and then later regularised in the respondent Bank. In this context, the interim order dated 02.06.2006 passed by another single Judge in the above writ petition is extracted hereunder:- “Notice by speed post. The regularisation ordered by the Central Government Industrial Tribunal as per the impugned awards would stand stayed. However, the petitioner shall continue to employ the workmen in question as before.” 11. The above order was challenged in appeal by the petitioner Bank. Before the Division Bench it was contended by the Bank that there were other persons appointed in the place occupied by the workmen who were continued as temporary PTE. The Division Bench by WPC.No. 14268/2006 &14318/2006 : 11 : judgment dated 18.07.2006 however, found that the point was not urged before the learned Single Judge nor is the matter even mentioned in the writ petition. Hence the appellant Bank was left with the remedy to move an application for review and the writ appeal stood dismissed. Obviously no review was moved and the order dated 02.06.2006 was in force all these years. In such circumstance, if the workmen had any contention with respect to non employment, then they necessarily should have moved the application before this Court. While dismissing the writ petitions, the statement made by the Bank as to one of the workman having not turned up and other having been subsequently regularised is recorded. The workmen would not get any right to seek for regularisation or for any back wages based on this judgment; if they had not turned up for work and continued thereat WPC.No. 14268/2006 &14318/2006 : 12 : which was specifically ordered by this Court at the time of admission of the writ petition. With the above reservation the writ petitions are dismissed. No costs. SD/- (K. VINOD CHANDRAN, JUDGE) jma