Telangana High Court

S.Narsimha Swamy vs Gnrl Mngr.,Nalgonda Dist Coop ... on 9 March, 2023

Bench: A.Abhishek Reddy

      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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                                                  W.P No.5559 of 2003

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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                                                           W.P No.5559 of 2003

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