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Judgment
The first captioned petition is filed by the employer and the other one is by the workmen; both of them seek to assail the judgment and award dated 31.12.2005 rendered by the Central Industrial Tribunal, Vadodara, in Reference (ITC) No.7 of 1998 to an extent of its adversity respectively against the management and the workmen. By the impugned award the termination of the workmen specified therein with effect from 10.06.1996 was held to be illegal and the employer is ordered to pay compensation in the sum of Rs.1,50,000/ in lumpsum in lieu of reinstatement and other benefits, to each of them.
The two petitions are based on the common facts and law and therefore one of them being SCA No.7575 of 2006 is treated as a lead matter and the facts contained therein are considered.
The employer came out with an approach paper produced at AnnexureE to the petition containing the following text:
"No. F3/3/10487IR
Government of India
Ministry of Finance
Department of Economic Affairs
(Banking Division)
New Delhi, the 16th August 1990
To,
The Chief Executive of all
Public Sector Banks.
Sub: Recruitment and absorption of temporary employees in Public Sector Banks.
Sir,
The problem of temporary employees in the Public Sector Banks has been engaging the attention of the Government for quite some time. After due consideration of all relevant facts and in consultation with the Ministry of Labour an approach paper has been worked out to deal with the problem. A copy of the approach paper is enclosed for information and necessary action. I am accordingly directed to say that all the Public Sector Banks may follow the provisions laid down in the Approach paper both in the matter of recruitment as well as absorptions of temporary employees.
Attention of banks is specifically invited to para 6(1) of the note which lays down that the recruitment of all temporary employees in the clerical/subordinate cadres shall be stopped forthwith. For the staff which is presently on the rolls of the banks their services will be regularized in the terms of the Approach paper. For the current requirements, banks may utilize their existing panel of temporary employees and in case these Exchange, the banks would be required to approach the DGET directly seeking exemptions. Until the problem of existing temporary employees is fully resolved, no bank will be permitted to make any temporary appointments. For future requirements, banks would have to approach Government and would have to go by such modalities as would be laid down by the Government.
Kingly acknowledge the recruit of this letter.
Yours faithfully,
Sd/
S.P Bhatia
Under Secretary to he Government of India
CC to
B. A Bombay
Sd/
S.P Bhatia
Under Secretary to the Government of India"
It is evident from the said paper that a problem of temporary employees in the public sector banks had engaged attention of the Government and the approach paper worked to deal with such problem. In the process, all the public sector banks were to follow the provisions made in the approach paper in the matter of recruitment of recruitment as well as absorption of temporary employees. It intended to stop the recruitment of all temporary employees in the clerical/subordinate cadres forthwith. The services of those already on the roll of the bank was required to be regularized in terms of the approach paper. For the current requirements, the banks were to utilize existing panel of temporary employees if taken from the employment exchanges and if not, with the exemption from DGET i.e. Director General of Employment and Training until the resolution of the problem. The banks were not permitted to take any temporary appointments. For future requirements, the banks were required to approach the Central Government. It appears that the approach letter contemplated the regularization of extemporary workmen under following clauses:
"c) Bank will provide one time opportunity to all the temporary employees by taking 1.1.82 as cut off date i.e all these who are engaged as temporary employees by the bank on or after 1.1.82 may be considered for re employment in terms of scheme being discussed hereunder and herein above. The cases, if any, which pertain to the period before 1.8.82 and taken up hereafter should be treated as clearly belated and stale and may be referred for adjudication."
...
h) Only those employees who had put in minimum temporary service of 90 or more days after the cut off date, i.e 1.1.82, will only be eligible for considering under the Scheme.
...
j) Recruitment shall be subject to statutory requirements regarding reservation for SC, ST, Physically Handicapped and Ex servicemen. In the case of extemporary employees who were recruited through Employment Exchanges between 1.1.82 and 31.12.89, the DGET has agreed to exempt the Managements from the requirements of Employment Exchange Procedure for appointment of these temporary workmen as regular workmen of the Bank. This exemption will not be applicable in cases of extemporary employees who were not initially sponsored by the Employment Exchange for appointment in the Bank. In such cases the managements shall apply to DGET for exemption giving full justification for making initial recruitment without reference to Employment Exchange."
Thus, evidently criteria for regularization of the extemporary employees were twofold; (I) That they should be the appointees between 01.01.1982 and 31.12.1989 and (ii) unless exempted by DGET, they should have been appointed through employment exchange between 01.01.1982 and 31.12.1989. For the purpose of regularization of the exemployees above referred, the banks were required to make a publication in the newspaper and accordingly the employer bank i.e. Bank of Baroda made the publication with the following statement in the advertisement:
"The bank proposes to draw up a panel of persons who have worked on temporary basis at any of branches/offices in India as peon for 90 days or more between 1.1.82 and 31.12.90 for consideration for their cases for future vacancies (temporary/permanent) subject to the following conditions:
(a) The candidates should have passed seventh standard but should not have studied beyond eighth standard / should have completed 18 years but should not have completed 26 years of age as on the date they were first engaged as temporary peons.
(b) Their employment and appointment is subject to reservation for SC/STs, physically handicapped, ex servicemen etc. and clearance from the Directorate General Employment and Training."
Thus, it appears that in disregard to the policy of the regularization, according to the employer, instead of 31.12.1989, 31.12.1990 was inadvertently indicated in the advertisement. The following facts would reveal that this date became the center point of the controversy.
5.1 It appears that pursuant to the said advertisement as many as 681 applications were received by the bank which were forwarded to DGET for confirmation. While forwarding the list of shortlisted eligible candidates, the bank in its letter dated 04.07.1994 to DGET stated as under:
"HO:R&P:86:1214 04.07.1994
Shri S.K. Sheth
Dy. Director
(Employment Exchange)
Ministry of Labour, DGE&T
Shram Shakti Bhjavan
Rafi Marg
New Delhi.
Dear Sir,
Re: Recruitment & Absorption of Temporary Employees in our bank.
We refer to the letter F.No.3/3/104/87IR dated 08.10.1991 addressed to Public Sector Banks by Shri S.P Bhatia, Under Secretary, Ministry of finance, Govt. of India, New Delhi. A copy of the letter was endorsed to you.
We were advised in the letter to approach you directly for granting exemption to the Bank from the requirement of Employment Exchange Procedure for regular employment of those temporary employees who were not engaged through Employment Exchange.
In terms of 6(g) of the Approach Paper referred to in the above stated letter from the Dept. of Banking, Bank had issued an advertisement in the national/vernacular newspapers in August 1991 inviting applications from eligible temporary employees who had worked in the bank in subordinate staff cadre during the period 01.12.1982 to 31.12.1990. A copy of the advertisement is enclosed. The applications received have been scrutinized and short listed according to eligibility of the candidate.
We are sending herewith in the format prescribed by you, names of the temporary employees whom we propose to consider for appointment in the Bank on regular basis in the subordinate staff cadre subject to conditions such as availability of vacancies, fulfillment of Banks's eligibility criteria for recruitment by candidates and their being found medically fit. The names are listed according to the administrative zones of the Bank and on top of the list the States covered under the zones are given.
We would request you to exempt us from the requirement of Employment Exchange procedure for appointment of the eligible temporary candidates as regular subordinate staff in the Bank at an early date.
Yours faithfully,
Sd/
Dy. General Manager
(Per. & HRD)
Encl: a/a"
Two material aspects required to be noted from the letter are (i) the bank was under the impression that the cut off period of service was between 01.01.1982 and 31.12.1990 (ii) that in respect of certain employees not having been employed through employment exchange, exemption was sought.
DGET reverted with its letter dated 08.08.1994 with following text:
"NO. DGET U.11014/7/94BB.I
Government of India
Ministry of Labour
D.G.E & T
3/10 Jam Nagar House
New Delhi 110001.
Dated 08/08/94
To,
The Deputy General Manager
(PER & HRD)
Bank of Baroda
Suraj Plaza I,
Sayajigunj
Baroda 3900050
Subject: Recruitment and Absorption
of Temporary employees in the
Bank
Sir,
I am directed to refer to your letter No. HD R&P : 86/214 dated 4.7.94 on the above subject and request you to furnish the list of temporary employees in the prescribed proforma strictly as per the Approach Paper issued by the Ministry of Finance, Department of Economic Affairs (Banking Division) particularly with the following requirements:
(i) Exclude the names of those persons who were recruited before 1.1.82 and after 31.12.89 and have rendered less than 90 days of service.
(ii) The total list of eligible employees according to approach paper may be sent with running serial number for clear identification of total employees and their total number may also be indicated in the forwarding letter to the proposal.
(iii) Each page of the proposal may be duly signed by the General Manager of the bank.
On receipt of the proposal on the above lines, the matter will be further examined.
Yours faithfully,
Sd/
(S.L.SETH)
Deputy Director of
Employment Exchanges"
The point required to be noted here is that the DGET inter alia required the bank to exclude the names of the persons who (i) were recruited before 01.01.1982 and after 31.12.1989 and (ii) rendered less than 90 days of service during the said period. In compliance with the above letter, a letter followed from the bank in the following terms:
"Bank of Baroda
(Head office : Mandvi, Baroda)
Suraj Plaza1
Saynjgunj,
BARODA - 390005
HO:R&P:86:2440
Mr. S.K. Seth
Dy. Director of Employment Exchange
Ministry of Labour
3/10 Jam Nagar House
New Delhi 110001
Dear Sir,
Re: Recruitment and absorption of Temporary
Employees in the bank.
We refer to your letter No. U 11014/7/94 EE.I dated 08.08.1994.
We are sending herewith the list 681 temporary employees in subordinate cadre in the prescribed proforma strictly as per the Approach Paper issued by the Ministry of Finance. We have particularly complied with the three requirements advised in your above letter.
We request you to examine the matter and send us your authorisation to recruit these 681 candidates in the bank.
Yours faithfully,
Corporate General Manager
(RP & MP)"
and approval 681 casual employees came to be granted by DGET on 09.08.1995.
It appears that certain exemployees filed Special Civil Application No.642 of 1996 in this High Court for certain reliefs, claiming their complied with the criteria of 90 days service between January, 1982 and 31.12.1990 as per the advertisement. They also made a grievance that they were sought to be excluded from consideration because according to the employer, they did not complete 90 days of service between 01.01.1982 and 31.12.1989; the grievance was also made that despite other 12 workmen having not completed 90 days service within the said period were regularized. When the petition came up for hearing on 17.04.1996 this Court (Coram:H.L.Ghokhle, J, as his lordships then was), while dealing with the said issue, noticed from the affidavit filed by the employer the plea of mistaken inclusion of 12 persons in the list for approval. The Court also noted the desire of the employer to rectify the error and remove the discrimination complained of after noticing the principle in Chandigarh Administration and Another v. Jagjitsinh and Another; AIR 1995 SC 705, that, the mistake cannot be ordered to be perpetuated. The Court also noted the need to correct the illegality as indicated in the said case and also that the Court should direct the appropriate authority to correct such wrong orders in accordance with law.
It appears that when the aforementioned affidavit was filed, the interest of the petitioner was safeguarded by interim relief. This Court thereafter proceeded to make following observations in para 4:
"4. While reexamining the matter, the Bank may wither deny regularisation to the 12 similarly placed persons or may regularise the first 15 petitioners. This is because this is not a case of one or two persons. In any case, while rectifying the 'error' as accepted by the Bank, if it does not remove the discrimination (as assumed in its affidavit) inspite of being granted time as sought by it, then it will mean that it has consciously retained the cutoff date of 31.12.1990 in the advertisement(which is submitted by Mr. Mansuri) or there is something more than what meets the eye."
It appears that in above view of the matter, the services of 12 persons was dispensed with, amongst whom 11 have filed the petition (supra), after exhausting their remedy under section 10 of the Industrial Disputes Act as also after having perused the remedy in Letters Patent Appeal against the dismissal of their claim in Special Civil Application No.4033 of 1996, where they challenged certain actions of the employer soliciting some informations from them by letters dated 31.05.1996 and 21.06.1996, as to the details pointing out their completing 90 days of service between 01.01.1982 and 31.12.1989. The bank interalia had taken the following stand in its letter dated 21.06.1996.
"(2) By this you are being given one more opportunity to produce proof and evidence if you have worked for 90 days during the period between 1.1.1982 to 31.12.1989, before the undersigned before close of officer hours on 27.06.1996 and you are being informed that if you fail to do so, it will be presumed that as per the record available with the bank, you have not put in work of 90 days during the period between 1.1.1982 and 31.12.1989 and that the appointment letter dated 29.12.95 was by mistake, was illegal and voidab initio and nonest under law and the same shall be deemed to be canceled without passing any other order and it will be presumed that you were illegally given the said appointment letter dated 29.12.95 and without the necessity passing any other or futher order after close of office hours on 27.06.1996, it will be deemed that from the beginning you were/are not qualified to be serving with the Bank for getting appointment by letter dated 29.12.95 and therefore you will not be able to serve with the bank."
The facts so far would indicate that on one hand 15 extemporary employees of the bank were presumably mistakenly appointed and on the other hand 12 ex temporary employees of the bank were seeking the regularization on the ground being (i) in terms of the advertisement, the cut off period between 01.01.1989 and 31.12.1990 was applicable to them (ii) that by applying the said cut off period, 12 ex temporary workmen of the bank were appointed. Insofar as the lot of 15 persons is concerned, they lost their battle upto the stage of LPA and the 12 persons having failed in their Special Civil Application No.4033 of 1996 pursued their remedy in Letters Patent Appeal No.615 of 1996 where also they failed, however, their right to pursue the remedy further under section 10 of the I.D.Act was reserved to them. They relied upon the following observations in the order dated 09.09.1996 in Letters Patent Appeal No.615 of 1996.
"We have heard Mr.Mansuri on admission in this Appeal. We are, however, not inclined to admit the same. The learned single ?Judge, by a speaking order on 17th of June, 1996, held that the appellants cannot be given relief, which they sought in their Special Civil Application for the reasons mentioned therein. We do not think that any further consideration is required. It is open to the appellants to approach the Industrial Tribunal for redressal of their grievance. In the event they approach the Industrial Tribunal, needless to say that the Tribunal will not be influenced by the observations made by the learned Single Judge in the impugned order and the Tribunal may decide the Reference in accordance with law on its merits."
For 11 persons out of the said 12, the Union pursued the dispute under section 10 of the I.D.Act where eventually, compensation in the sum of Rs.1,50,000/ was allowed to each one of them.
Having indicated the broad facts as above, this Court would at this stage note the occurrences during the hearing of two petitions (supra) by two groups of exemployees of the bank. The petition filed by the 15 persons being Special Civil Application No.642 of 1996 was dismissed principally on two grounds; (I) that DGET was justified in correcting the date from 31.12.1990 to 31.12.1989 for applying criteria for regularization. (ii) That the principle grievance of the 15 petitioners who were similarly situated to the other group of 12 petitioners was redressed by initiating the proceedings against them by the bank.
In the petition by the present workmen being Special Civil Application No.4033 of 1996, the order was passed on 07.06.1996 dismissing it interalia in absence of the assertions that they had completed 90 days between 01.01.1989 and 31.12.1989. It was also observed that since they were similarly situated to the aforesaid 15 persons, the bank after following the due procedure was entitled to proceed against the said 12 persons as well. The matter was taken unsuccessfully in Letters Patent Appeal where the order quoted herein above was passed.
The Court while disposing of Special Civil Application No.642 of 1996 made the following observations in relation to applicability of Section 25F while dealing with the submission made in that regard before it.
"Mr. Mansuri, however, tried to invoke the provisions of Section 25 F of the I.D Act with reference to the subsequent employment after the advertisement when temporary employment was offered to persons who had prima facie completed 90 days of temporary service. It shall have to be kept in mind that these are totally voluntary scheme sponsored and encouraged by the Central Government with a view to providing employment to totally unemployed persons. For preparing such a scheme Approach Letter is prepared in consultation with Banks and representative unions and scrupulous compliance to such approach letter is very much needed. In fact, the schemes are purely beneficial schemes with a view to seeing that unemployed persons are provided employment. When subject to verification of claim of candidates, temporary employment was offered to them the period of service put in by them subsequently can not qualify them or seeking protection of approach letter of seeking protection of Section 25F of the I.D Act 1947. It is in this context that such beneficial scheme for providing part time job or some job which might provide sustenance to the totally unemployed persons that the Apex Court has even denied the extension of principle of equal pay for equal work. The paramount object is to be seen and further that the objective to provide employment on terms and conditions of Approach Letter is also satisfied. In the present case, since terms and conditions of the Approach Letter were not satisfied and since the names of the petitioners were rightfully excluded from the panel they can not claim any protection of Section 25F of the I.D Act. When their major grievance of other 12 persons ....not equally treated is also made out and when the bank has issued notices to such 12 persons for their termination as they were irregularly offered appointment the petitioners have no leg to stand because their only argument of equality of discriminatory treatment visavis those 12 persons is squarely answered."
Heavy reliance has been placed on the said observations to nonsuit the workmen while contending that section 25F did not apply in the facts of the present case.
In the reference, the workmen claimed that they were terminated with effect from 10.09.1996 whereas in the letter above quoted, the stand taken by the bank in regard to the termination is otherwise. According to the bank, the vacation of interim relief by this Court while dismissing the petition automatically brought an end to their services, which services were continued under the interim orders of the Court.
The workmen also contended being in continuous service for more than 240 days within the meaning of section 25B of the I.D.Act as also having qualified for regularization for having completed 90 days service between 01.01.1982 and 31.12.1990. It was also contended that in absence of compliance with section 25F, the termination was bad in law. They also placed reliance upon the fact that other persons were regularized by the bank. It was contended that they were appointed pursuant to the public advertisement and therefore, could not have been terminated.
The Tribunal was acquainted with the facts indicated in detail herein above, giving rise to the controversy. It also perused the orders in the two petitions and the Letters Patent Appeals and noted that the liberty was reserved to the workmen to raise an industrial dispute. It also opined that the basis of the termination of service of the workmen was the orders in Special Civil Application No.4073 of 1996 and Letters Patent Appeal No.615 of 1996.
One of the contentions with the Tribunal was that in case of illegal appointments, section 25F would not apply. In this regard, as indicated above, while the employer has relied upon the observations made in Special Civil Application No.4033 of 1996, learned counsel for the workmen has relied upon the observations in Bihar State Schedule Caste Development Ltd. & Anr. v. State of Bihar and Ors.
The order reads thus;
"ORDER
It was submitted that the appointment was illegal as it was invalid as such Section 25F of the Industrial Disputes Act (hereinafter referred to as 'the ID Act') was not applicable.
We are not able to accept the aforesaid submission as invalid appointment is not covered in the Exemptions under section 2(00) of the ID Act. Thus, Section 25F of the ID Act is clearly applicable and is attracted.
Consequently, the retrenchment has rightly been held to be illegal.
The appeals are, accordingly, dismissed.
Pending application(s), if any, shall stand disposed of."
It is contended that even in case of illegal and invalid appointments, section 25F shall have to be adhered to in case of retrenchment of the workmen.
After recording the finding that the aforesaid
11 persons are workmen, the Tribunal returned the finding that; (i) They were appointed on probation and not terminated in terms of the order appointing them on probation and it amounted to retrenchment and were terminated in breach of section 25F.
As to the quantum of service as contemplated in section 25B i.e. 240 days in the last 12 preceding calender months, the Tribunal noted that the said fact was not seriously challenged and the retrenchment in absence of complying section 25F was illegal. The Tribunal in para 36 stated that it was not considering the question of regularization but only of retrenchment. After finding that the retrenchment was in contravention of section 25F, it proceed to consider the relief to which the workmen were entitled to and eventually awarded the lumpsum compensation in sum of Rs.1,50,000/ to each of them. The reinstatement was denied on the ground that the retrenchment was in accordance with the judgment of the High Court.
Before answering the questions raised during the rival submissions, one of the undisputed crucial facts bearing on the facts of the case is required to be noted. The workmen were not in regular service between 01.01.1982 and 31.12.1989 or 31.12.1990. They even could not justify factually that during the long span of seven years between 01.01.1982 and 31.12.1989, they had worked for 90 days or more with the bank. Thus, at an average within the said period, they had not even discharged their duties for more than 12 or 13 days in a year. They were thus not in continuous service with the bank during the said period. The workmen did not place their details of work for the period after 1989 or 1990 and their appointments after advertisement. The said fact as such may not have the direct bearing on the matter, but is required to be stated only to gather the nature and the extent of the service the workmen had discharged before their appointment pursuant to the advertisement.
The workmen seem to have been appointed in contemplation of their appointment being sanctioned by DGET who eventually sanctioned the same by letter dated 09.08.1995. Clearly the criteria in the approach letter indicated above was that the ex temporary employees of the bank should have worked for 90 days between 01.01.1982 and 31.12.1989 to be eligible for regularization and advertisement above referred was issued on misconception of the relevant criteria contained in the approach letter as noted above and the said mistake was rectified under instructions of DGET as indicated (supra). The mistake would not bound a person under Articles 14 and 16 of the Constitution of India. The recruitment of the workmen herein was not a recruitment during the regular course but was only pursuant to the policy contained in the approach letter (supra). Therefore, only those complying with the terms of the policy were eligible for appointment/regularization. When the conferment of the benefit like the one in the approach letter is not in conformity with the constitutional provisions, such beneficiary cannot fall back on to Articles 14 and 16 of the Constitution to save his appointment mistakenly made. Such an appointment would be void and would not be legal and would not qualify for being considered on the touchstone of section 25F of the Industrial Disputes Act.
It goes without saying that the rights and liabilities of the parties would be governed by several factors like the nature of right of an employee under the approach letter, sanctity of the scheme which deviated from the constitutional provisions particularly Articles 14 and 16 in the matter of appointments/regularization, the number of days the workman has put in, the nature of appointment, its' legality and validity. When the scheme of regularization or appointment itself is vulnerable to Articles 14 and 16 of the Constitution of India, it would be incapable of investing a legal or constitutional right in a person to seek the appointment either by the writ of this Court or by raising an industrial dispute, for no public body can be mandated to act upon the vulnerable schemes or the schemes which have no constitutional backings. However, the arbitrary exercise of powers under the scheme favoring one class of aspirants while ignoring other class similarly situated would also be vulnerable and after noticing that, necessary interim orders were passed by this Court in accordance with which the actions were taken against the workmen herein, who for want of compliance with the terms of the policy, were sought to be dispensed with. The other group of workmen lost the battle upto the stage of Letters Patent Appeal; the battle was concededly not carried further and thus, the workmen herein, after removal of the group of 15 persons cannot make an argument which, if allowed, would require the bank to commit the same mistake as was committed in case of appointment of the group of 15 workmen. Curiously, the workmen herein who questioned the employment of the said 15 persons on the ground that they did not comply with cutoff period (supra), sought a prayer from the Labour Court to put them in the same position as the 15 persons were. Employer was under the orders of this Court that either the group of present workmen be shunted of, or the group of 15 persons be regularized. Having carried out the orders of this Court, it would not be appropriate to direct the employer bank to commit the same mistake. Under any case, workmen herein like other beneficiaries were under an obligation to fulfill the criteria laid under the scheme/approach letter to be eligible for regularization. The workmen herein seems to be the class different than other beneficiaries who satisfied the criteria and were regularized. They cannot be therefore equated with such beneficiaries. Their plea however is that the cutoff period specified in the approach letter/scheme was not within their knowledge and they were only concerned with the date specified in the advertisement and having fulfilled the criteria under the said advertisement, they could not have been terminated. The aforementioned cut off period in the advertisement was an inadvertence of the bank and as noticed in Chandigarh (supra) the mistake can be corrected and no right to claim the benefit of mistake would accrue to his beneficiary. Viewed from that angle, no right to stick to the employment was vested in the workmen herein. By treating their appointment as nonest, in fact, the mistake was corrected. Thus, when no right accrued to them, the question of encashing it under section 10 of the I.D.Act by raising industrial dispute would not arise. Section 25F in the opinion of this Court can be invoked where the appointment, legal or illegal, voluntarily made by the employer is terminated. Where the employer was not willing to make appointment except on satisfaction of the specified criteria, and the appointment was mistakenly given and the employees are continued until the mistake was noticed, the plea of breach of section 25F in the event of correction of the mistake would not be available to the retrenched workmen.
Public bodies like a nationalized banks are bound by the acts of its executives only to an extent permissible under the relevant rules or schemes or the documents like approach letters which may prescribe their policy. A mistake by executive of a public body would not bind it and consequently, a mistaken action or inaction would not culminate into a binding contract. The orders passed on mistake of 'act' would therefore be nonest and would not be capable of bringing about any relations between the contracting parties whatsoever. There is vast difference between things being nonest and illegal and invalid actions or inactions or orders inasmuch as, the former presupposes a lack of consent or willingness on the part of one of the parties whereas in the later, the consent or willingness is present but action or inaction may be unlawful and thus, the later action or inaction would be binding until annulled, by the suitable legal order, judicial or otherwise. Viewed from this angle, no relations between the bank and the workmen herein ever came to fore and in absence of such relations section 25F was not applicable.
Unfortunately, the Labour Court could not appreciate the legal position (supra) and fell in error in conceiving the relationship between bank and the workman herein as that of employer and workmen which did not exist.
Assuming that the workmen had no knowledge about the mistake as to the cutoff period as advertised, as indicated above, the employerbank being a public institution was only bound by the scheme in the approach letter and not by the mistake of its executives in publication of the inadvertent cutoff period in the advertisement. Deviation from this rule would open a Pandora's box for the bank to face the litigation seeking appointments/regularization in breach of the specified criteria laid in the approach letter. Sanctity of the scheme itself would suffer by accepting the workmen's plea as in such a case the workmen would be successful in compelling the bank to make appointments/regularization dehors the criteria of the scheme.
It is misconceived to argue that there was no direction to terminate but a direction was to deny the regularization. The argument ignores the contextual factual background. The scheme under approach letter proposed the appointments/regularization of the class of workmen who might have completed 90 days between 01.01.1982 and 31.12.1989. Such exemployees may have served the bank in past or may be in service on 31.12.1989. That would mean that employees not completing 90 days of service between the period (supra) if working on 31.12.1989, would be terminated and if not working on that date, would not be called for regularization. Thus, it cannot be said that the scheme framed only on regularization as is sought to be contended by the learned counsel for the workmen.
Heavy reliance has been placed upon the regularization scheme dated 24.03.2008 contained in the circular referring to tripartite settlement dated 18.03.2008 under Section 12(3) of the Industrial Disputes Act, 1947, to contend that the regularization has been a continuous process and the denial to the workmen herein would thus be unjust. It appears that a tripartite settlement under section 12(3) of the I.D. Act was arrived at, which culminated into the aforementioned circular. This Court cannot pronounce upon the rights and obligation flowing from such settlement in absence of relevant proceedings and the necessary material under which the settlement was arrived at. However, reference to section 18 of the Act can be made to point out that the said settlement would bind to all parties specified therein. The workmen herein do not fall in any of the classes under the provision (supra) and thus would not be entitled to claim the benefit of settlement. Even otherwise the workmen herein do not satisfy the criteria contemplated in the tripartite settlement and therefore also they are not entitled to the benefit under the said scheme.
Much water has flown in the river post the date of dispute i.e. about 23 years now. Therefore, even if the workmen were to succeed, their reinstatements would be out of question.
Learned counsel for the workmen placed reliance upon Hari Nandan Prasad and Anr. v. Employer I/R to Management of FCI and Anr.; passed in Civil Appeal Nos.24172418/2014 (Arising out of S.L.P. (Civil) Nos.2963429635) decided on 17.02.2014. The observations in the decision cannot be applied in the contextual facts discussed in detail herein above. It appears from paras 16 and 17 of the decision that the rendition of 240 days of service by the workmen as daily wager was not disputed in the case (supra), whereas the fact situation in the present case is entirely different.
In view of the above discussion, in the opinion of this Court, when the workmen were not entitled to any relief, the question of compensation under section 25F or otherwise would not arise at all. The Labour Court was under serious jurisdictional error when it proceeded on the assumption of applicability of section 25F of the Act while ignoring the other contextual facts which clearly indicate that the appointment of the workmen was under a bonafide mistake and it did not at all create the relationship as that of the employer and the workmen amongst them. The impugned judgment and award therefore cannot be sustained. Special Civil Application No.7575 of 2006 therefore must succeed. Accordingly, it is allowed and Special Civil Application No.18627 of 2006 must fail and is accordingly dismissed.
It appears that by virtue of interim order, the workmen were benefited by a sum of Rs.50,000/ each which they have withdrawn. The submission made by Mr.Parikh in this regard is that having indicated in the interim order that such amount would be returned by the workmen in case they loose in the proceedings, the workmen must comply with the said obligation. On the other hand, it is contended that the litigation went on for about 23 years and now the workmen are overaged and not financially sound to refund the said amount. In the peculiar facts of the case, the said amount may be retained by the workmen but shall not claim the rest i.e. Rs.1 lakh which is already deposited in the fixed deposit scheme of nationalized bank. The said amount of Rs.1 lakh each along with accrued interest shall be appropriated by the bank.
Learned counsel Mr.Parikh points out that despite the fact that money deposited were the bank's money and were not parted in favour of the workmen, it mistakenly deducted the TDS against interest accrued thereon and now would like to pursue the matter qua such deduction with the income tax authorities. If such a course is permissible, the bank would be at liberty to do so and the income tax department eventually will decide such application of the bank in accordance with law.
Both the petitions are disposed of accordingly.