Employers In Relation To The ... vs Workmen Represented Through The ...
2023 Latest Caselaw 2855 Jhar

         IN THE HIGH COURT OF JHARKHAND AT RANCHI

                         L.P.A. No. 465 of 2022

         Employers in Relation to the Management of Central Bank of
         India, Ranchi being represented through its Regional Manager Shri
         Sunil Kumar, aged about 55 years son of Lt. Shrawan Kr. Singh,
         both having their office at Krishna Arcade, Booty More, P.O. &
         P.S. Bariatu, District Ranchi
                                        ...     ...      Petitioner/Appellant
                                 Versus
         Workmen Represented Through the Deputy General Manager,
         Bihar Provincial Central Bank of India Employees Association,
         Central Bank of India, Sakchi, P.O. & P.S. Sakchi, District
         Singhbhum East                 ...       ... Respondent/Respondent
                                 ---
CORAM: HON'BLE MR. JUSTICE SHREE CHANDRASHEKHAR
        HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY
                                 ---
      For the Appellant          : Mr. P.A.S. Pati, Advocate
      For the Respondent         : Mr. Rahul Kumar, Advocate
                                 : Ms. Apoorva Singh, Advocate
                                        ---
                 th
 Order No. 12/14 August 2023

        Per Anubha Rawat Choudhary, J.

1. This appeal has been filed by the appellant against the judgment dated 15th July 2022 passed in W.P.(L). No.2812 of 2007 only to the extent it relates to the respondent namely Sudama Sharma.

2. The writ petition was filed challenging the Award dated 24th August 2016 passed by Central Government Industrial Tribunal (1), Dhanbad in Reference Case no.23 of 2014 whereby the reference made under section 10 (1) (d) (2-A) of the Industrial Disputes Act, 1947 was allowed in favour of the workmen namely Sudama Sharma, Ranjit Sarkar, Babulal Pramanik and Shakti Kumar.

3. Workman Sudama Sharma was working as a driver. The learned writ Court interfered with the order of regularization so far as the canteen employees are concerned. So far as another driver Ranjit Sarkar is concerned, he was already regularized by the Central Bank of India (hereinafter referred as 'Bank') and, therefore, the writ Court did not interfere with the Award in connection with Ranjit Sarkar. The learned writ Court refused to interfere with the Award passed in favour of Sudama Sharma and hence this appeal has been filed by the Bank.

4. The terms of reference before the Industrial Tribunal were as follows:

"Whether non regularizing the services of S/Shri Sudama Sharma, Ranjit Sarkar, Babulal Pramanik and Shakti Kumar as regular employees of Bank of Central Bank of India is justified? If not, what relief the concerned workmen are entitled to"

5. The learned counsel appearing on behalf of the appellant has submitted that so far as the direction of the learned Industrial Tribunal regularizing the services of Sudama Sharma is concerned, the same was not sustainable in the eyes of law, particularly, in view of the fact that Sudama Sharma was not being paid any regular salary by the appellant, rather he was paid certain amount through vouchers for a short period, and therefore, the direction to regularize Sudama Sharma was not sustainable in the eyes of law. He has also submitted that Sudama Sharma was being paid directly by the concerned employees of the appellant, who were posted in the branch from time to time. The learned counsel has also submitted that Sudama Sharma was discontinued from the services of the Bank on 21st May 2007 during the pendency of the reference case and therefore he could not be regularized by virtue of the Circular issued in the year 2011.

6. Learned counsel has relied on the judgment passed by the Hon'ble Supreme Court reported in (1978) 2 SCC 358 (Punjab National Bank Vs. Ghulam Dastagir) and has submitted that in the said case also, the driver of the vehicle was driving the vehicle for the concerned manager and the vehicle was being maintained at the expenses of the Bank, but the same was not enough to grant relief to the workman and ultimately, the Hon'ble Supreme Court directed the Bank to see that the driver is absorbed in the personal service of one or the other higher officer of the Bank. The learned counsel submits that in view of the ratio laid down by the Hon'ble Supreme Court in the aforesaid judgment, the Award was not sustainable with respect to Sudama Sharma. He submits that these aspects of the matter have not been properly considered by the learned writ Court and therefore, the appeal is fit to be allowed to the extent it relates of Sudama Sharma and the consequently, the Award with respect to regularization of Sudama Sharma is also fit to be set aside.

7. Learned counsel appearing on behalf of Sudama Sharma submitted that he was employed by the appellant as a driver as back on 01st January 1990 and it has come on record that Sudama Sharma was driving the vehicle owned by the Bank. He also submits that another driver namely Ranjit Sarkar was employed as Bank's driver much later i.e. on 25th November 1992. When these two drivers were not regularized, they raised industrial dispute and the reference was made vide order dated 23rd March 2004. The reference involved disputes relating to a few canteen employees also with whom Sudama Sharma has no concern.

8. The learned counsel submits that during the pendency of the reference case, Sudama Sharma was discontinued on 21st May 2007 and Ranjit Sarkar, who joined the Bank subsequently, was regularized with effect from 10th December 2007. Learned counsel submits that the regularization of Ranjit Sarkar was done pursuant to the scheme of the appellant and in spite of the fact that Sudama Sharma was senior, he was discontinued and was not regularized. He submits that aforesaid aspects were taken care of by the learned Tribunal while passing the Award with respect to Sudama Sharma and the learned writ Court has rightly refused to interfere with the Award with respect to Sudama Sharma.

9. The learned counsel has relied on the judgment passed by Hon'ble Supreme Court reported in (2005) 10 SCC 792 (Bank of Baroda Vs. Ghemarbhai Harjibhai Rabari) and has submitted that in the said case, the driver was driving the vehicle of the Bank and ultimately, it was held that there was enough evidence from the side of the workman to prove his case, but the evidence of the workman could not be rebutted by the Bank and consequently, the appeal was decided in favour of the workman by considering that he had worked for more than 240 days in a year.

10. The learned counsel has submitted that once Sudama Sharma was engaged to drive the vehicle of the Bank, it was immaterial as to who was riding the vehicle and for all practical purposes Sudama Sharma was to be treated as an employee of the Bank. The learned counsel has also submitted that the scope of interference in Award passed by learned Industrial Tribunal is very limited and there is no

illegality or perversity in the Award passed by the learned Industrial Tribunal to the extent it relates to Sudama Sharma and, therefore, the judgment passed by the learned Single Judge refusing to interfere with the order of regularization of Sudama Sharma does not call for any interference. He has also submitted that a finding of fact has been recorded by the learned Tribunal that there was already a recommendation to regularize Sudama Sharma by stating that he was working for last 17 years and it was certified that Sudama Sharma was very honest workman and he may be absorbed on regular basis. He submits that there is no scope of re-appreciation of materials placed before the learned Tribunal to come to a different finding. There is no illegality or perversity in the Award and, therefore, this appeal is fit to be dismissed.

11. After hearing the learned counsel for the parties and considering the facts and circumstances of this case, this Court finds that the matter was contested before the learned Industrial Tribunal and both the parties had filed their written submissions and adduced their evidence. The Award itself indicates that as per the evidence-in- chief of the management witness, Ranjit Sarkar was already regularized by the management of the Bank on 10th December 2007 upon his completion of 15 years of service and it was an admitted fact that Sudama Sharma was initially appointed prior to Ranjit Sarkar and was senior to him.

12. The learned Industrial Tribunal after considering the materials has recorded specific finding in paragraph no.20 that Sudama Sharma was working regularly from 1990 to 2007 and it was certified that Sudama Sharma was driving the vehicle since 1990 under various Regional Managers, Chief Managers and Assistant General Managers. It was also proved that owner of the vehicle was the appellant Bank. The various Managers/Chief Managers had recommended for regularization of the service of Sudama Sharma by certifying that he was working for 17 years and he was very honest and he should be regularized in services. The learned Industrial Tribunal also recorded that as per the circular of the appellant, Sudama Sharma fulfilled the criteria for regularization. After having recorded the aforesaid facts, the learned Industrial Tribunal held that the appellant was not justified

in not regularizing the service of Sudama Sharma and the appellant was directed to regularize the service of Sudama Sharma against the regular vacant post of driver or peon w.e.f. 10th December 2007 or from which date Ranjit Sarkar was regularized, but without back wages.

13. The learned Tribunal has recorded in paragraph 16 of the Award as under:

"16. The Mw-1 also admitted that the petitioner Sudama Sharma was senior to Ranjeet Sarkar. He has also said that Ranjeet Sarkar withdrew his case as he was regularized as permanent Driver. But Sudama Sharma not granted the permanent status and subsequently removed.

17. As per seniority list of personal Driver marked as "X" which is identified by MW-1. that Sri Sudama Sharma numbered as Sl. No. 5 is senior from Ranjeet Sarkar Sl. No. 8.

18. As per letter No. JSR/PRS/02-03/405 the representation of Sudama Sharma is recommended by Sr. Manager to Zonal Office with remarks that "Sri Sudama Sharma is dutiful, Sincere and hard working while performing his duties, he is recommended to absorbed in Bank's permanent staff cadre." He is also allowed festival advance, as well as uniform and shoes. As such Perusal of all voluminous payment voucher other document of workman it is very much material, and it goes in favour of workman."

14. The learned writ Court finding no illegality or perversity in the Award dated 24th August 2016 has recorded in order dated 15th July 2022 as under:

"Considering the rival submissions of the parties and looking into facts and circumstances of the case, particularly the judgment passed by the Apex Court, the Canteen Workers are not the employees of the Bank and thus the award in favour of the Babulal Parmanik and Shakti Kumar is hereby set aside.

So far Ranjit Sarkar is concerned, it is an admitted position, that Ranjit Sarkar has been regularized by the Bank, but no reason has been given for discriminating Sudama Sharma, who was admittedly, as per the evidence of M.W.-1, is senior to Ranjit Sarkar. A wrong plea has been taken by the Bank, that Sudama Sharma and Ranjit Sarkar were private drivers, which is not correct, as the vehicles were provided by the Bank and these persons were driving the vehicles of the Bank. As such, in absence of any contrary evidence brought on record by the Bank, this Court is of the finding that both were driving the vehicles of the Bank and their case is not like the case of Canteen Workers. Accordingly their case is distinguishable."

15. This Court finds that the Award passed by the learned Industrial Tribunal is a well-reasoned Award considering the materials on record and no illegality or perversity as such has been pointed out by the learned counsel appearing on behalf of the appellant calling for any interference in the Award so far as Sudama Sharma is concerned. The learned writ Court has considered the Award and has clearly recorded

that Ranjit Sarkar who was junior to Sudama Sharma was already regularized and Sudama Sharma was driving the vehicle of the appellant. The learned writ Court has refused to interfere with the Award so far as Sudama Sharma is concerned. The learned writ Court has rightly compared the case of Sudama Sharma with that of Ranjit Sarkar, who was taken into employment much after Sudama Sharma. Sudama Sharma was taken into employment on 01st January 1990 and was engaged in driving the vehicle of the appellant and Ranjit Sarkar was taken into employment only on 25th November 1992 and was working as driver. Merely because Sudama Sharma was discontinued on 21st May 2007 during the pendency of the reference case, the same would not disentitle Sudama Sharma from his claim for regularization when the reference regarding claim of regularization was made as back as on 23rd March 2004.

16. In the aforesaid facts and circumstances, this Court finds no merit in the present case.

17. So far as in the judgment passed by Hon'ble Supreme Court reported in (1978) 2 SCC 358 (Punjab National Bank Vs. Ghulam Dastagir) is concerned, the Hon'ble Supreme Court has specifically observed in para 5 as follows:

"5. We are impressed with Shri Khera's appeal to us that the system of allowances in a country where there is unemployment may lead to individual injustice with an exploitative edge. It is likely that if the Bank had to employ drivers for their vehicles, the terms and conditions would have been much higher but in the private sector individual drivers may be hired on lower pay. This is not a desirable tendency for a public sector undertaking like a nationalised Bank. We hope that the possibility of abuse of the system of drivers' allowances and the obligation of the public sector undertakings to be model employers will lead to a change in the approach of our nationalised banks and other public sector undertakings towards this issue of employing persons on a private basis by senior officers and the management itself giving some small sum by way of allowances in lieu of procuring such services. A fair and straightforward method would be for the Bank or like institution to engage its own driving staff. It is also important to remember that the vehicles belong to the industry and if drivers hired on a private basis by officers are allowed to use such vehicles, there may be potential damage and reckless use. In the long run, both from the point of view of employment morality and preservation of institutional property, it may be wise to revise the approach to the issue like the one we are confronted with. Of course, on the facts in this case we have decided what we consider is the only conclusion possible. Even so, this does not preclude the banking institutions and like undertakings adopting a different policy which we consider will be commendable."

18. In the said case, the Hon'ble Supreme Court has taken note of the fact as to the manner in which the drivers are being employed in the banks which could lead to their exploitation. The observation

made by the Hon'ble Supreme Court as back as in the year 1978 has remained as observation only and it appears that the practice to engage drivers, taking work for years together but not taking them in employment has continued with the public sector banks. It appears that the present case of Sudama Sharma is one such instance. The respondent Sudama Sharma in his deposition before the learned Industrial Tribunal had also stated that he was rendered unemployed after being removed on 21st May 2007.

19. Considering the totality of facts and circumstances, this Court finds it proper to dismiss this appeal with cost on the appellant to the extent of Rs.20,000/- to be paid by the appellant to Sudama Sharma by remitting the amount directly in his bank account within a period of one month from the date of furnishing of the details of the bank account by respondent-workman Sudama Sharma.

(Shree Chandrashekhar, J.)

(Anubha Rawat Choudhary, J.) Saurav/Pankaj-