THE HON'BLE SRI JUSTICE A. ABHISHEK REDDY
WRIT PETITION No.5559 of 2003
ORDER:
Challenging the Award dated 30.01.2002 passed by the Labour Court-III, Hyderabad, in I.D. No.172/1998, the present Writ Petition is filed by the petitioner-employee.
2. Facts leading to filing of the present Writ Petition, in a nutshell, are as follows:
The petitioner herein has joined as attender temporarily on daily wage basis in the District Co-op. Central Bank Limited, respondent herein, in the year 1992. On 12.05.1995, the Central Manager of the respondent-Bank had issued proceedings to all the Branch Managers of the respondent-Bank to discontinue the services of all the daily wage workers with immediate effect. The petitioner and other similarly situated persons have filed W.P.No.10230 of 1995 challenging the letter dated 12.05.1995. This Court has disposed of the said writ petition directing that the petitioners shall not be terminated by the respondents except in accordance with the rules and procedure operating upon their services and the policy of the respondents. Pursuant thereto, the respondent-Bank had issued retrenchment orders dated 29.07.1995 terminating the 2 AAR,J W.P No.5559 of 2003 services of the petitioners w.e.f.31.07.1995. The notice was sent to the petitioner and others along with one month pay and other retrenchment benefits as required under Section 25-F of the Industrial Disputes Act, 1947 (in short 'the Act'). Questioning the retrenchment orders, dated 29.07.1995, the petitioner and others have filed W.P. No.22092 of 1995 before this Court. Vide order dated 21.08.1997, the said writ petition was allowed by a learned Single Judge of this Court. However, the respondent Bank have filed Writ Appeal being W.A. No.1212 of 1997 before the Division Bench of the High Court and vide judgment dated 17.12.1997 the Division Bench has set aside the order dated 21.08.1997 passed by the learned Single Judge and allowed the Writ Appeal, however, leaving it open to the employees to raise an Industrial Dispute or to take appropriate proceedings under A.P. Shops and Establishment Act. In pursuance thereof, the petitioner and retrenched employees have raised industrial disputes between the Labour Court, wherein a common award was passed dismissing the plea of the petitioners holding that the respondent Bank have complied with the provisions of Section 25F of the Act and that the petitioners are not entitled for the relief prayed for. Questioning the common award dated 30.01.2002, to the extent of I.D. No.172 of 1998, the petitioner is before this Court.
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3. A counter has been filed by the respondent Bank mainly contending that the services of the petitioner were engaged on daily payment basis only and they were never appointed against the approved staffing pattern. It is further submitted that even though two new branches were opened, the petitioner and similarly situated persons could not be accommodated in view of the fact that the Commissioner for Cooperation and Registrar of Cooperative Societies, Hyderabad, had accorded permission for opening of the two branches subject to the condition that there shall not be any appoint of further staff on account of opening of the said two branches and that in order to streamline the financial administration, the Commissioner has fixed the staffing pattern vide proceedings dated 12.05.1994. Even though, the termination orders were quashed by the learned Single Judge, the respondent Bank preferred Writ Appeal and the same was allowed by the Division Bench. Even the Labour Court has dismissed the case of the petitioner. Hence, it is prayed to dismiss the writ petition.
4. Heard Sri M. Rama Rao, the learned counsel for the writ petitioner and Sri Rohit Pogula, learned counsel for the respondent No.1. Perused the record.
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5. The admitted facts are that the petitioner along with five others, were working as Attenders on daily wage basis during the period 1992 to 1995 and they were retrenched from services based on a memo issued by the respondent-Bank on 12.05.1995, bearing Rc.No.Bkg/B-2/F.31/1994-95. Challenging the said memo, the petitioner along with others had filed W.P.No.10230/1995 and this Court vide order dated 25.05.1995 has set aside the same directing the authorities to follow the procedure if they want to terminate the petitioners. Thereupon the bank removed the petitioners and others from service by following due procedure as per Section 25F of Industrial Disputes Act, 1947 vide proceedings Rc.No.Bkg/B- 12/F.31/1995-96 dated 29.07.1995 with effect from 31.07.1995 Thereafter, the petitioner herein and others have again approached this Court vide W.P.No.22092/1995 questioning the retrenchment order dated 29.07.1995. Though this Court vide order dated 21.08.1997 had allowed the said Writ Petition but bank has preferred a Writ Appeal No.1212/1997 against the order of the learned Single Judge and the said writ appeal was allowed by setting aside the orders of the learned Single Judge passed in W.P.No.22092/1995 dated 21.08.1997 and the petitioner herein and others were directed to approach the Labour Court. Thereafter, the petitioner herein along with other 5 AAR,J W.P No.5559 of 2003 retrenched employees had approached the Labour Court vide I.D.Nos.171/98, 172/98, 173/98, 174/98, 175/98, 176/98, 177/98, 178/98 and 179/98. The present writ petition is against the common order dated 30.01.2002 passed in I.D.No.172/98. As against the common order dated 30.01.2002 passed in I.D.Nos.178/98, 175/98, 177/98 and 171/98, the Writ Petition Nos.19616/2003, 5561/2003, 5562/2003 and 5569/2003 came to be filed and this Court vide common order dated 05.01.2012 has dismissed the said Writ Petitions holding as under:
"In this case, since the petitioners and the respondent are the employer and employees and the employees though were present physically refused to take notices, the notices were put up in the Notice Board of the respondent bank. Since the petitioners were working till 31.07.1995, the display of the notices in the Notice Board of the bank is sufficient service of notice on the petitioners.......
Another question to be answered is whether in the absence of clear vacancies, can the respondent bank be directed to engage the petitioners? It has been held in a number of cases that the employer cannot be compelled to continue to employees without there being a clear vacancy or there being expediency for work. Therefore, there is no merit in these Writ Petitions."
6. The learned counsel for the petitioner has stated that subsequently, when the bank wanted to make fresh recruitments in the year 2008, the petitioner herein along with others had filed W.P.No.4995/2008 seeking a direction to the 6 AAR,J W.P No.5559 of 2003 bank authorities to consider the case of the petitioner and others under Section 25-H of the Industrial Disputes Act, 1947, in the event the bank recruits any employees against the existing vacancies. This Court vide order dated 10.03.2008 has allowed the said writ petition, holding as under:
"Hence the Writ Petition is disposed of, directing that as and when the respondent proposes to fill the vacancies, that were earlier occupied by the petitioners, the cases of the petitioners shall also be considered in terms of Section 25-H of the Act. There shall be no order as to costs."
Thereafter, in the month of January, 2019, the bank has taken up steps to fill up the vacancies and conducted a written test for the recruitment to the post of Attenders but the petitioner was not given hall ticket on the ground that he has crossed 50 years of age. Seeking a direction from this Court, the petitioner has filed I.A.No.1 of 2019 in W.P.No.5559 of 2003, with the following prayer:
"...pleased to issue a direction to the respondent to consider the petitioner for re-appointment for the post of Attender without objecting the age of 50 years forthwith in the interest of justice and to pass such other order or orders appropriate in the case."
Counter has been filed by the authority concerned stating that basing on the recommendations of High Level Committee, the eligible internal candidates were recommended as under:
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"1. The candidates who passed or failed 7th Class and are working as Attenders or sweepers on contract or consolidated or daily wage basis in TSCAB or DCCBs as on 30.09.2017 and continuing till 01.07.2018 shall be called as "Eligible Internal Candidates" for the purpose of selection.
2. The age shall be between 21 to 50 years for all eligible internal candidates."
Thereafter, vacancies were filled up. As the petitioner was not eligible under the said criteria, he was not given hall ticket. Even though the petitioner has filed I.A.No.1 of 2019, no interim orders were passed by this Court. The learned counsel for the petitioner has stated that the recommendations of the High Level Committee are contrary to the terms of Section 25-H and 25-J of the Industrial Disputes Act, that the petitioner cannot be termed as a new employee but should be treated as existing employee and therefore, ought to have been allowed to take the exam for recruitment. For the reasons best known to the petitioner, he has not taken any steps to either amend the main prayer in the writ petition or press for passing of orders in I.A.No.1 of 2019 at that relevant point of time. Now after a lapse of more than four years, no order can be passed in I.A.No.1 of 2019, more-so, when the entire recruitment process is over.
7. Having regard to the orders passed by this Court in W.P.No.19616/2003 and batch in respect of the very same 8 AAR,J W.P No.5559 of 2003 common order dated 30.01.2002 passed by the Labour Court, which is impugned in the present writ petition, this Court cannot take a contra view and the present Writ Petition is also liable to be dismissed.
8. Accordingly, this Writ Petition is dismissed. However, it is left open to the petitioner to take appropriate steps for challenging the recommendations made by the High Level Committee in fixing the upper age limit to 50 years, if he is so advised.
Consequently, miscellaneous petitions pending, if any, shall stand closed. There shall be no order as to costs.
__________________________ A. ABHISHEK REDDY, J Date: 09.03.2023 scs