W.P.(C) Nos.4800 & 4823 of 2006: Canara Bank v. K.G. Sulochana and Central Government Industrial Tribunal-cum-Labour Court, Trivandrum

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** # **MONDAY, THE 30TH DAY OF OCTOBER 2017/8TH KARTHIKA, 1939** **WP(C).No. 4800 of 2006 (U) ------------------------------------------** **PETITIONER(S) : -------------------------** **CANARA BANK, CIRCLE OFFICE, SPENSER JUNCTION, M.G.ROAD, TRIVANDRUM, REPRESENTED BY ITS GENERAL MANAGER, CANARA BANK, CIRCLE OFFICE, SPENSER JUNCTION,, M.G.ROAD, TRIVANDRUM.** **BY ADV. SRI.R.S.KALKURA** - **RESPONDENT(S) : ----------------------------** **1. K.G.SULOCHANA, REPRESENTED BY THE STATE SECRETARY, CANARA BANK EMPLOYEES UNION, P.BALAKRISHNA MENON SMARAKOM, AMBUJAVILASOM ROAD, TRIVANDRUM.** **2. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNALCUM-LABOUR COURT, TRIVANDRUM, REPRESENTED BY ITS SECRETARY.** **R1 BY ADV. SMT.ANITHA RAVINDRAN R2 BY ADV. SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL ADV. SRI.JAGADEESH LAKSHMAN, CGC** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13-07-2017, ALONG WITH W.P(C).NO. 4823 OF 2006, THE COURT ON 30-10-2017 DELIVERED THE FOLLOWING:** **Msd.** ## **WP(C).No. 4800 of 2006 (U)** ## **------------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1: TRUE COPY OF THE CLAIM STATEMENT SUBMITTED BY THE CLAIMANT IN C.R.NO.3 OF 2005 DATED 02.07.2004.** - **EXHIBIT P2: TRUE COPY OF THE REPLY STATEMENT SUBMITTED BY THE 1ST RESPONDENT DATED 06.05.2005.** - **EXHIBIT P3: TRUE COPY OF THE REJOINDER STATEMENT SUBMITTED BY THE 1ST RESPONDENT DATED 06.05.2005.** - **EXHIBIT P4: TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DATED 05.08.2005.** - **EXHIBIT P5: TRUE COPY OF THE AWARD DATED 30.11.2005.** - **EXHIBIT P6: TRUE COPY OF THE GUIDELINES DATED 09.06.2000.** - **EXHIBIT P6(A): TRUE COPY OF THE MINUTES DATED 05.10.2000.** **EXHIBIT P7: TRUE COPY OF THE GUIDELINES ISSUED BY THE MANAGEMENT DATED 23.12.1993.** - **EXHIBIT P8: TRUE COPY OF THE GUIDELINES OF THE MANAGEMENT DATED 23.12.1993.** - **EXHIBIT P9: TRUE COPY OF THE CHART DETAILING THE NUMBER OF DAYS WHICH THE 1ST RESPONDENT HAD WORKED FROM 1992. DATED NIL.** - **EXHIBIT P10: TRUE COPY OF THE LETTER DATED 28.01.2003 ISSUED BY THE EMPLOYMENT EXCHANGE.** ## **RESPONDENT(S)' EXHIBITS & ANNEXURES :** - **ANNEXURE R1(A): TRUE COPY OF THE BONUS PAID REGISTER MAINTAINED BY THE VALAPAD BRANCH OF THE BANK FOR THE PERIOD 2012, 2013 TO 2015 INDICATING PAYMENT OF BONUS TO THE PETITIONER.** - **ANNEXURE R1(B): TRUE COPY OF THE ORDER DATED 02.06.2006 IN WRIT PETITION NO. 4823 OF 2006.** **//TRUE COPY//** **P.A.TO JUDGE.** **Msd.** ## **A.MUHAMED MUSTAQUE, J.** _**********************************************************************_ ## W.P.(C) Nos.4800 & 4823 of 2006 _**********************************************************************_ Dated this the 30[th] day of October, 2017 ## JUDGMENT These writ petitions concern the common order of the Industrial Tribunal, Ernakulam allowing the claim for absorption of two workers of the Canara Bank in the permanent vacancies of part-time employees. 2. The dispute referred for adjudication by two separate reference order of the Central Government was whether the demand of the Canara Bank Employees' Union to absorb Smt.K.G.Sulochana and Smt.D.S.Mohini, is justifiable or not. The industrial dispute was raised through a registered union of the Canara Bank. In the light of the discussions and the findings in the common award passed by the Industrial Tribunal, it is appropriate to dispose these cases by a common judgment. 3. Challenging the award of the Industrial Tribunal, the learned counsel for the petitioner raised many contentions and also relied on the following judgments: **Western India Match Company v. Western India Match Company Workers Union [AIR 1970 SC 1205], Gujarat Agricultural University v. Rathod Labhu Bechar and Others [(2001) 3 SCC 574], Executive** W.P.(C) Nos.4800 & 4823 of 2006 2 **Engineer, Electricity Distribution Division, U.P.S.E.B., Bareilly v. Hydro Electric Employees Union [(1999) 1 SCC 253], Lalithakumari v. Divisional Engineer (Cables) [1983 KLT SN 23], Director, Tourism Department, Thiruvananthapuram v. Industrial Tribunal, Kollam [2005 (1) KLT 320], Hari Nandan Prasad and Another v. Employer I/R to Management of FCI and Another [2014 KHC 4096], School Education Department v. Govindaswamy [2014 (4) SCC 769], Union of India and Others v. A.S.Pillai and Others [(2010) 13 SCC 448], State of Rajasthan v. Daya Lal [(2011) 2 SCC 429], Executive Engineer ZP Engineering. Division v. Digambara Rao [AIR 2004 SC 4839], A.Umarani v. Registrar, Co-operative Societies [(2004) 7 SCC 112], Zakir Hussain v. Engineer-in-Chief, Irrigation Department [ILLJ 5(All)], Delhi Development Horticulture Employees Union v. Delhi Administration [1992 ILLN 939]** and **Secretary to Government, Commercial Taxes and Registration Department, Secretariat and Another v. Singamuthu (Civil Appeal No.3770 of 2017).** 4. The learned counsel _inter alia_ contended that workers have no right to become members of the registered union and therefore, the Union cannot espouse the industrial dispute on behalf W.P.(C) Nos.4800 & 4823 of 2006 3 of the workers. It is also contended that there were no vacancies to absorb the workers and therefore, the finding of the Tribunal was erroneous. The learned counsel also contended that the workers had not worked 240 days in the year and they were only engaged in the leave vacancies. It is also the case of the Bank that being a public sector undertaking, a temporary hand engaged as a causal employee cannot be absorbed by violating the Rules and Procedure of the recruitment. 5. Per contra, the learned counsel for the Union and the Workers argued that the scope of judicial review is limited and the finding of facts cannot be interfered by this Court unless such finding of facts are perverse. It is argued that unfair labour practices is the subject of the Industrial Disputes Act and the matter has to be considered within the domain of the Industrial Disputes Act and not with reference to the Rules and Regulations of the respondent Bank. 6. The Tribunal overruled the objection regarding the _locus standi_ of the Union and found that the part-time workers are also the members of the Union and therefore, the Union can espouse the cause of the Workers. The Tribunal particularly noted that the Bank had no case that the workers were not the members of the Union. The precise case of the Bank was that the workers were not eligible W.P.(C) Nos.4800 & 4823 of 2006 4 to become members. 7. The workers who claimed absorption are members of the Union. It is to be noted that the Bank has no case that the workers are not the members of the Union. It is to be further noted that the industrial dispute is connected with employment with the Bank. There is no dispute regarding the fact that the Union is a registered Union and is recognized by the Bank. In such circumstances, the Union is competent to take up any dispute within the meaning of 'Industrial Dispute' as defined under Section 2(k) of the Industrial Disputes Act. Therefore, I do not find any scope to interfere with the findings by the Industrial Tribunal. 8. The Tribunal entered into a definite finding based on the evidence that the workers are having the service of more than 240 days in a year. The Tribunal relied on the daily wages register maintained by the branch of the Bank. The Tribunal also relied on the bonus paid register. In such circumstances, finding of the Tribunal was based on evidence. 9. Next question is whether the workers are entitled to be absorbed in the permanent vacancy of part-time employees. The main contention raised by the learned counsel for the Bank is that W.P.(C) Nos.4800 & 4823 of 2006 5 the Bank is having a definite procedure and norms for selecting the daily wage workers as well as regular employees and therefore, through a back door, the workers cannot claim absorption. The learned counsel also argued that merely because the workers have put 240 days in a year, they cannot raise a claim for regularisation. In fact, this issue was considered at length by the Tribunal. The Tribunal found out that there are permanent vacancies to accommodate the petitioners as part-time employees. The Tribunal also found that there are permanent vacancies in Valapad and Kadavanthra branches of the Bank. It is also found that the workers are suitable candidates as per the norms of the Bank. It is to be noted that Smt. Mohini was originally engaged in the leave vacancy of Smt.Elsy Thomas from 1995 onwards and Smt.K.G.Sulochana was also engaged in the leave vacancy of Smt.N.K.Kalikutty from 1992 onwards. There is a clear finding that the workers were continuously engaged in the Bank. In such circumstances, the only question that arises for this Court is to consider whether these workers are legally entitled to be absorbed or not. Some of the judgments relied by the learned counsel for the petitioners in **Executive Engineer, Electricity Distribution Division, U.P.S.E.B., Bareilly v. Hydro Electric Employees Union [(1999) 1 SCC 253],** W.P.(C) Nos.4800 & 4823 of 2006 6 **Director, Tourism Department, Thiruvananthapuram v. Industrial Tribunal, Kollam [2005 (1) KLT 320], Gujarat Agricultural University v. Rathod Labhu Bechar and Others [(2001) 3 SCC 574],** have no application to the matter based on the finding of facts. In **Hari Nandan Prasad and Another v. Employer I/R to Management of FCI and Another [2014 KHC 4096],** it was held by the Hon'ble Supreme Court that mere long service as daily wager cannot be a basis for directing regularistion. The above case is arising from the industrial dispute terminating the service of the casual employees. In **State of Karnataka v. Umadevi [(2006) 4 SCC** ## **1]** , the Hon'ble Supreme Court held as follows: “48. ...... There is no fundamental right in those who have been employed on daily wages or temporarily or on contractual basis, to claim that they have a right to be absorbed in service. As has been held by this Court, they cannot be said to be holders of a post, since, a regular appointment could be made only by making appointments consistent with the requirements of Articles 14 and 16 of the Constitution. The right to be treated equally with the other employees employed on daily wages, cannot be extended to a claim for equal treatment with those who were regularly employed. That would be treating unequals as equals. It cannot also be relied on to claim a right to be absorbed in service even though they have never been selected in terms of the relevant recruitment W.P.(C) Nos.4800 & 4823 of 2006 7 rules.” 10. The Hon'ble Supreme Court in School Education Dept. v. Govindaswamy [2014 (2) KLT Suppl.92 (SC)] also held that part time sweepers of the Bank working for more than ten years cannot be directed to be absorbed into service. In fact, the issue arose for consideration from a challenge made before the Madras High Court in a writ petition. In **Union of India and Others v. A.S.Pillai and Others [(2010) 13 SCC 448]** , the Hon'ble Supreme Court also considered the issue relating to absorption of the casual labour. In fact, it was a claim for regularization of the casual employee who had to perform duties twice or thrice in a week. The challenge was laid before the Central Administrative Tribunal for regularization. The Hon'ble Supreme Court by holding that there is no cadre for accommodating such casual employees and also they being parttime cannot be absorbed in full-time cadre, rejected the claim of absorption. In **Executive Engineer ZP Engineering. Division v. Digambara Rao [AIR 2004 SC 4839]** the Hon'ble Supreme Court considered the claim for absorption of the daily wage employees for absorption. The workers were employed on daily wages in a scheme for providing drinking water and construction of roads to benefit the rural poor in the district of Gulbarga in the State of Karnataka. The W.P.(C) Nos.4800 & 4823 of 2006 8 workers approached Karnata High Court for regularisation. The Supreme court held that on mere completion of 240 days of continuous service in a year itself is not a ground for regularisation. In **Delhi Development Horticulture Employees Union v. Delhi Administration [1992 ILLN 939],** the Hon'ble Supreme Court considered the claim for absorption of daily wages of the daily waged workers engaged by the Development Department of Delhi Administration. They approached the High Court for the absorption of their service. Taking note of the nature of the scheme and engagement, the Hon'ble Supreme Court held that the workers cannot claim absorption. In another judgment of the Hon'ble Supreme Court in Civil Appeal No.3770 of 2017, it was held as follows: “Part-time or casual employment is meant to serve the exigencies of administration. It is a settled principle of law that continuance in service for long period on part-time or temporary basis confers no right to seek regularisation in service. The person who is engaged on temporary or casual basis is well aware of the nature of his employment and he consciously accepted the same at the time of seeking employment. Generally, while directing that temporary or part-time appointments be regularised or made permanent, the courts are swayed W.P.(C) Nos.4800 & 4823 of 2006 9 by the long period of service rendered by the employees. However, this may not be always a correct approach to adopt especially when the scheme of regulrisation is missing from the rule book and regularisation casts huge financial implications on public exchequer.” In fact, the Hon'ble Supreme Court considered the issue from a challenge for regularisation made through the writ petition before the Hon'ble High Court of Judicature at Madras. 11. It is the settled proposition of law that now even if the workers are engaged for a long period, they cannot claim regularisation if they are recruited violating the norms of the recruitment. However, the issue has different dimension and colour in the domain of the Industrial Disputes Act. The Industrial Disputes Act defines 'unfair labour practice' in Section 2 (ra) as follows: “unfair labour practice” means any of the practices specified in the Fifth Schedule. In the fifth schedule, unfair labour practices are enumerated. In clause 10, it is referred as follows: “To employ workmen as “badlis”, casuals or temporaries and to continue them as such for years, with the object of depriving them of the status and privileges of permanent workmen.” Thus if an employer employs casual or temporary workers for years W.P.(C) Nos.4800 & 4823 of 2006 10 with the object of depriving them of the status and privileges of permanent workmen, certainly, such action amounts to unfair labour practices. In such situation, the employer is estoped from raising objection against absorption based on the procedure or norms devised for the recruitment. The case is relied by the learned counsel for the petitioners in **Umadevi** 's case ( _supra)_ are arising from the challenge in the writ petitons. The Tribunal or Labour Court has a power to conduct an enquiry in relation to the unfair labour practices. The object of the enquiry is to find out whether any deprivation has been meted out to the workers on account of ignorance, poverty etc. These workers belonged to a marginal sector of the society. They were originally engaged in the leave vacancies. They continued in the service of part-time employees of the Bank for more than a decade when they approached the Industrial Tribunal. 12. The Apex Court in **Ajaypal Singh v. Haryana Warehousing Corporation [(2015) 6 SCC 321]** considered the impact of **Umadevi** 's case ( **supra** ) on labour legislation like Industrial Dispute Act and observed in as follows: 20. The provisions of the Industrial Disputes Act and the powers of the Industrial and Labour Courts provided therein were not at all under consideration in Umadevi's case.. The issue pertaining to unfair labour W.P.(C) Nos.4800 & 4823 of 2006 11 practice was neither the subject-matter for decision nor was it decided in Umadevi's case. 21. We have noticed that the Industrial Disputes Act is made for settlement of industrial disputes and for certain other purposes as mentioned therein. It prohibits unfair labour practice on the part of the employer in engaging employees as casual or temporary employees for a long period without giving them the status and privileges of permanent employees. 13. The above judgment was also followed by the Hon'ble Supreme Court in **Durgapur Casual Workers Union and Others v. Food Corporation of India and Others [(2015) 5 SCC 786]** . In **Maharashtra State Road Transport Corporation and Another v. Casteribe Rajya Parivahan Karmchari Sanghatana [(2009) 8 SCC** **556** ], it was held by the Hon'ble Supreme Court that the power of Industrial Tribunal or Labour Court to accord permanency to employees on finding unfair labour practices is not affected by **Umadevi'** s case ( _supra)_ . 14. Once the Tribunal finds that workers are eligible for absorption on the ground of unfair labour practices based on the materials before the Tribunal, it is beyond the power of scrutiny of this Court to re-appreciate the facts to overturn such finding on facts. It is to be noted that the Tribunal had only ordered regularization as a W.P.(C) Nos.4800 & 4823 of 2006 12 part-time employee in the permanent vacancies. In the light of the discussion as above, this Court finds that no reason to interfere with the impugned award in an exercise of the power of the judicial review. Accordingly, these writ petitions are dismissed. No costs. Sd/- **A.MUHAMED MUSTAQUE, JUDGE** ln