Indian Bank Jewel Appraisers ... vs Government Of India
2023 Latest Caselaw 9760 Mad

                                                                               W.P.No.37516 of 2016

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                    DATED : 07.08.2023

                                                           CORAM

                                    THE HONOURABLE MR.JUSTICE M.DHANDAPANI

                                                  W.P.No.37516 of 2016


                     Indian Bank Jewel Appraisers Union
                     Rep. by its General Secretary
                     Mr.K.Yuvaraj                                         ... Petitioner

                                                             Vs.

                     1.Government of India
                       Rep. by its Secretary
                       Ministry of Labour and Employment
                       Shram Sakthi Bhavan,
                       New Delhi – 110 001.

                     2.The Management of Indian Bank
                       Rep. by its General Manager – HR
                       Corporate Office,
                       254-260, Avvai Shanmugam Salai,
                       Chennai – 600 014.                                 ... Respondents


                     Prayer:
                                  Petition filed under Article 226 of the Constitution of India to
                     issue a Writ of Certiorarified Mandamus after calling for the records
                     pertaining to the order dated 25.11.2014 passed by the first
                     respondent in No.L-12011/71/2014-IR (B-II), quash the same and
                     consequently direct the first respondent to refer the dispute raised by
                     the petitioner union for adjudication to the competent Labour Court/
                     Tribunal forthwith, award costs.

                     1/8

https://www.mhc.tn.gov.in/judis
                                                                               W.P.No.37516 of 2016



                                       For Petitioner  : Mr.V.Ajoy Khose
                                       For Respondents : Mr.M.Aravind Kumar for R1


                                                          ORDER

The petitioner has filed this writ petition seeking issuance of

Writ of Certiorarified Mandamus after calling for the records pertaining

to the order dated 25.11.2014 passed by the first respondent in No.L-

12011/71/2014-IR (B-II), quash the same and consequently direct the

first respondent to refer the dispute raised by the petitioner union for

adjudication to the competent Labour Court/ Tribunal forthwith.

2.The case of the petitioner is that the petitioner union raised

industrial dispute before the Deputy Chief Commissioner of Labour

(Central) Chennai through their letter dated 19.04.2013 with regard to

regularization of service of jewel appraisers as permanent clerical

staffs of the Bank, removal of ceiling of appraisal fees and restraining

the appointment of jewel appraisers to one person only in the branch

and since amicable settlement was not arrived, the Conciliation Officer

sent failure report dated 28.07.2014 to the first respondent, however,

the first respondent declined to refer the industrial dispute to the

Central Government Industrial Tribunal, Chennai. Hence, this petition.

https://www.mhc.tn.gov.in/judis W.P.No.37516 of 2016

3.The learned counsel appearing for the petitioner submitted

that the first respondent in the impugned order has referred the

decision of the Hon'ble Apex Court reported in SCC 720 (2006) (30)

and has stated that the dispute is not fit for adjudication, however, the

said decision relates to Indian Overseas Bank and is not applicable to

the present case on hand and the industrial dispute raised by the

petitioner has to be decided only by the competent Labour Court and

hence refusing to refer the industrial dispute raised by the petitioner to

the Central Government Industrial Tribunal, Chennai, is not sustainable

one.

4.The learned counsel appearing for the first respondent

submitted that the issue is no longer res integra. The issue has

already been elaborately considered by the Hon'ble Apex Court in its

decision reported in 2006 AIR (Supreme Court) 1699 (General

Manager, Indian Overseas Bank Vs. Workmen, All India Overseas Bank

Employees Union) and has held that the jewel appraisers are not

employees of the Bank. Hence, the impugned order warrants no

interference.

https://www.mhc.tn.gov.in/judis W.P.No.37516 of 2016

5.Heard the arguments advanced on either side and perused the

materials available on record.

6.The facts in the present case is not in dispute. Admittedly, the

petitioner union raised industrial dispute before the Deputy Chief

Commissioner of Labour (Central) Chennai, with regard to

regularization of service of jewel appraisers as permanent clerical

staffs of the Bank, removal of ceiling of appraisal fees and restraining

the appointment of jewel appraisers to one person only in the branch

and since amicable settlement was not arrived, the Conciliation Officer

sent failure report to the first respondent, however, the first

respondent declined to refer the industrial dispute to the Central

Government Industrial Tribunal, Chennai on the ground that the jewel

appraisers are not employees of the Bank and hence the dispute is not

fit for adjudication.

7.In the decision relied upon by the learned counsel appearing

for the first respondent i.e., the decision reported in 2006 AIR

(Supreme Court) 1699 (General Manager, Indian Overseas

Bank Vs. Workmen, All India Overseas Bank Employees Union),

https://www.mhc.tn.gov.in/judis W.P.No.37516 of 2016

the Hon'ble Apex Court has held that the jewel appraisers are not

employees of the Bank, i.e., no only in respect of the Indian Overseas

Bank but in respect of all the Banks. For better appreciation, the

relevant portion is extracted hereunder:

“13.A few other facts need to be noted. In the present case as well as in Puri Co-operative Bank's case (supra) the jewel appraisers were required to weigh the ornaments brought to the Bank for pledge and to appraise quality, purity and value. The jewel appraisers could be asked to do this exercise but not the manner in which it was to be done. In both the cases the respective banks had their lists of appraisers. It was not obligatory for the Bank to allot work to any particular jewel appraiser.

14.Strong reliance was placed by learned counsel for the respondent in Dhrangadhra Chemical Works Ltd. v. State of Saurashtra (1957 SCR 152), Silver Jubilee's case (supra), Shining Tailors v. Industrial Tribunal II, U.P. (1983 (4) SCC 464), Chintaman Rao v. State of M.P. (1958 SCR 1340).

15.The inferences culled out from the reading of those judgments can be summed up as follows:-

(a) Where the contactors were substantially responsible for the main and sole business, they would be treated as workers.

(b) One exception is that in such cases flexibility of

https://www.mhc.tn.gov.in/judis W.P.No.37516 of 2016

the contract was at variance with normal worker's contract the contractors would not be treated as workers.

(c) Where the contractor is in the nature of supplier of goods and services, they are to be treated as supplier contractors and not workmen.

At this juncture the distinction between jewel appraisers and the regular employees of the bank can be noted.

Regular Employees Jewel Appraisers

1. Subject to qualification 1. No qualification/age and age prescribed

2. Recruitment through 2. Direct engagement by Employment exchange/ the local Manager Banking Service Recruitment Board.

3. Fixed working hours 3. No fixed working hours.

4. Monthly wages 4. No guaranteed payment, only commission paid.

5. Subject to disciplinary 5. No disciplinary control. control

6. Control/supervision is 6. No control/supervision exercised not only with over the nature of work to regard to the allocation of be performed. work, but also the way in which the work is to be carried out.

Regular Employees Jewel Appraisers

7. Wages are paid by the 7. Charges are paid by the

https://www.mhc.tn.gov.in/judis W.P.No.37516 of 2016

Regular Employees Jewel Appraisers Bank. borrowers.

8. Retirement age 8. No retirement age.

9. Subject to transfer 9. No transfer

10. While in employment 10. No bar to carry on any cannot carry on any other avocation or occupation. occupation.

Therefore, the jewel appraisers are not employees of the Bank.

Above being the position, the judgment of the Division Bench affirming the views of the learned Single Judge and the Tribunal is clearly indefensible, deserves to be set aside which we direct.

The appeal is allowed with no order as to costs.”

8.The decision cited supra makes it clear that the jewel

appraisers are not employees of the Bank. Hence, this Court is not

inclined to interfere with the impugned order.

9.The writ petition is dismissed. No costs.

07.08.2023 pri Speaking Order/ Non Speaking Order Index: Yes/ No Internet: Yes/ No

M.DHANDAPANI,J.

pri

https://www.mhc.tn.gov.in/judis W.P.No.37516 of 2016

To

1.Government of India Rep. by its Secretary Ministry of Labour and Employment Shram Sakthi Bhavan, New Delhi – 110 001.

2.The Management of Indian Bank Rep. by its General Manager – HR Corporate Office, 254-260, Avvai Shanmugam Salai, Chennai – 600 014.

W.P.No.37516 of 2016

07.08.2023

https://www.mhc.tn.gov.in/judis