R SUNDARAM Vs. STATE BANK OF INDIA

JUDGEMENT

(1.) THE case of the petitioner is that he was in temporary service of the State Bank of India in the first instance at Lalgudi and thereafter at Madurai branch as a temporary watchman. According to him, he was in service from May 6, 1968 to August 9, 1972 under orders passed periodically and his services were terminated arbitrarily and illegally without any reason. It is his claim that he was in continuous service within the definition of Section 25-B (i) of the Industrial Disputes Act (herein after referred to as 'the Act') from October 23, 1967 or at any rate from May 6, 1968 till August 10, 1972. It is also contended that he had worked for more than 240 days in the year preceding his termination and notice ought to have been issued to him under Section 25-F of the Act. Relying upon the judgment of the Supreme Court in The State Bank of India v. Shri N. Sundara Money (1976 -I-LLJ-478) the petitioner has come forward: with the Writ Petition for issue of mandamus directing the respondent Bank to reinstate him in service as Clerk, Watchman or in any equivalent in the category of sub-staff in any of their branches with continuity of service. The petition was actually filed on October 8, 1984. In the affidavit it is also stated that the action of the respondent is yiolative of the principles of natural justice, Articles 14 and 16 of the Constitution of India and Sections 25-G and 25-H of the Act. It is averred that pursuant of the judgment of the Supreme Court in Sundara Money's case (supra) the respondent has taken a policy decision to recall all persons whose services were terminated like that of the petitioner, but had not given any publicity either in the Press or otherwise and kept it as a secret with the result the concerned Branch Managers only intimated their favourites and reappointed them and absorbed them in permanent vacancies. Names of eighteen persons are mentioned in the affidavit and it is alleged that they were voluntarily called back by the concerned Branch Managers and absorbed as permanent employees. According to petitioner, there were such appointments even in June 1983. A reference is also made to a proceeding in I. D. No. 11 of 1977 and the absorption of certain persons in permanent vacancies in pursuance of the Award passed therein. It is stated by the petitioner that he was not aware of the said policy decision of the Bank till December 1983 and on coming to know of the same, he immediately caused a layer's notice dated December 31, 1983. He had not received any reply. It is further stated that he was without a regular job since August 1972 and many of his juniors had been absorbed in permanent vacancies by the Bank. With those averments he has prayed for issue of Mandamus as stated above.

(2.) THE Bank filed a counter affidavit setting out the following case: The Bank had a fixed pre-determined complement of regular staff for all the establishments including the branches. As per the sanctioned strength of staff, appointments were offered to the candidates selected on the basis of test and interview. Every Branch/administrative Office maintained a panel of temporary employees and persons sponsored by the employment Exchange alone were included in the Panel. Whenever any sub-staff goes on leave or a need arises for engagement of temporary sub-staff for any particular period, the Branch appoints one from the panel of temporary employees and he will be asked to work for the specified period. Such engagement is restricted only to the period of the vacancy and he is paid only for the days for which he was engaged. Codified Staff Circular No. 44 as on December 31, 1972 dealt with appointment of temporary employees and the absorption in regular service. According to the circular, whenever a vacancy in Sub-Ordinate cadre arises in a Branch the first priority in the matter of appointment should be given to the person who had served the branch in a temporary capacity for a period of at least three months, provided there were no temporary employees with a service of more than nine months (as on August 31, 1966) remaining to be absorbed in the bank service. Further, when a vacancy arises in the subordinate cadre in a branch, the Branch Manager will advise the Personnel Department or the Regional Office whether there is any subordinate employee who had put in temporary service of three months or more and if so, an application in the standard form should be obtained from such employee and forwarded to them. The temporary employees were considered only for vacancies arising in the branch in which he was working as temporary employee. When a vacancy arises in the subordinate cadre at the branch, the temporary employee should approach the Branch Manager who will collect an application from him and forward it to the Regional Office for Permanent employment. After the disposal of Sundara Money's case (supra) by the Supreme Court holding that even the cessation of employment of temporary employee on the expiry of the fixed period of temporary employment would amount to retrenchment requiring compliance with the provisions of Section 25-F of the Act, there were spate of claims from temporary employees claiming relief of reinstatement and absorption in service. On July 14, 1976, the Central Office of the Bank issued a directive with regard to engagement of temporary employees and their absorption in service to the effect that such of those employees who were then in service and who had completed one year of service will be taken for the time being in temporary service, that employees whose services were terminated on or after January 1, 1975 should be reinstated in temporary capacity on their making an application for reinstatement and they should be reinstated without any backwages and that in the case of employees who were not engaged after January 1, 1975, their claims should be decided on merits and if necessary should be contested on the ground of staleness of claims etc. , The All India State Bank of India Staff Federation raised an industrial dispute (1) making a claim for backwages in respect of temporary employees who were reinstated in service pursuant to the decision in Sundara Money's case (supra), and (2) non-employment of 768 temporary employees who had not completed 240 days of attendance in a period of twelve months immediately preceding their termination. The dispute was referred to the Central Government Industrial Tribunal, Madras, for adjudication. That was numbered as I. D. 11 of 1977. On October 4, 1978 a settlement was arrived at between the Bank and the Staff Union, Madras Circle. On the basis of the settlement, an award was made. As regards the second issue, it was provided that the list of 301 persons submitted by the Union as not having been offered employment yet from out of 768 persons referred to in the said issue will be gone into by the parties and such of them as are agreed to have been covered by the number of 768 shall be offered employment by the Bank. The Union represented that the list of 768 included temporary employees in the subordinate cadre. The Bank agreed to consider them for employment provided they were in the list of 768. The respondent is not in a position to say whether a vacancy arose in Madurai Branch after August 9, 1972 and whether the petitioner was entitled to be considered for permanent employment in terms of Staff Circular No. 44 and whether he approached the Madurai branch Manager to forward his application for permanent employment. There is no record to show that the petitioner staked his claim for absorption and the same was negatived. The first occasion on which the petitioner made a claim was by his lawyer's notice on December 31, 1983. His claim has become stale and has to be rejected on the ground of delay and laches. The petitioner's name did not figure in the list of 301 employees submitted by the Union for absorption. It is not open to the petitioner to challenge the validity of the termination of his employment on August 9, 1972. He ought to have pursued his remedies under the Act and he cannot approach this Court to exercise its discretionary jurisdiction under Article 226 of the Constitution of India. In view of the lapse of time, the Bank is not in a position to ascertain whether the petitioner had put in continuous service of 240 days as claimed by him. In any event the Bank does not admit that the termination of the petitioner's employment was in violation of Section 25-F of the Act. As there was no claim or representation on behalf of the petitioner at any time, there was no scope of considering him for absorption in permanent vacancy. Out of the 18 persons mentioned in the affidavit of the petitioner, 12 were employees in Clerical cadre and they were offered permanent employment on the basis of test and interview. Three persons made claims for absorption in service in terms of relevant Circulars and on being satisfied with their claims, they were appointed in permanent vacancies. Two other persons appointed as Godown Watchmen in Salem Branch with effect from January 2, 1978 and the third was appointed as a Messenger in Adyar Branch. All the said employees did make a claim or representation either directly or through the Union and they were duly considered. As the petitioner remained inactive, he cannot be heard to claim that he should be absorbed in permanent employment. The petitioner's failure to claim for employment for more than ten years is due to his having obtained employment elsewhere or because he was not interested in Bank job. In view of the advanced age of the petitioner, there is no scope to offer him permanent employment.

(3.) AN additional affidavit has been filed on January 6, 1995 by the Bank referring to certain development which had taken place subsequent to the filing of the Writ Petition. According to that affidavit, the SBI Staff Federation espoused the cause of the temporary employees of the subordinate cadre and the Bank agreed to consider the same on certain terms and conditions resulting in settlement dated November 7, 1987 under. Section 18 (1) of the Act. The said settlement was amended by another settlement dated July 16, 1988. In terms of the settlements, all the temporary employees are to be considered for permanent employment by an interview, provided they satisfied certain terms and conditions. This exercise was completed and a pane! consisting of 3178 candidates was drawn to cater to the future vacancies arising in the Bank. As on date 660 candidates were absorbed permanently in the Bank from the panel. All the future vacancies which are to arise are to be filled only from this panel consisting of wait listed candidates upto March 31, 1995.