General Manager, State Bank of Hyderabad, Hyd. and Another vs V. Ramulu

V.V.S. Rao, J

This writ appeal under Clause 15 of the Letters Patent is by the General Manager, State Bank of Hyderabad, Head Office, Hyderabad (the bank for brevity). It is a Nationalised Bank. This appellant Bank is aggrieved by a mandamus issued by this Court (learned single Judge) directing the Bank to absorb the respondent herein as sub-staff in the subordinate cadre as early as possible but not later than four weeks from the date of receipt of a copy of the order of the learned single Judge dated 13-8-1997. Before we consider the efforts of the appellant Bank to make a mountain out of a mole-hill as to the interpretation of the words "on or after" appearing in the Approach Paper of the Government of India as well as Bank''s Circular which is the trump-card of the Bank in this forensic game, we state the brief fads as usually we do.

The parties are referred to as they appear in the writ petition. The petitioner worked for 164 1/2 days during the year 1978-79 in Mahaboobnagar Branch as a casual labour. The Government of India issued a letter enclosing the Approach Paper. This deals with regularisation of all temporary employees and then categorically prohibits engaging persons on temporary basis in all the cadres. As the same is binding, the Bank issued Circular Letter No.R.III/Gr-I/346, dated 5-6-1991 to all its branches. That circular says that subject to eligibility for the post of appointment as peon/messenger in the subordinate cadre temporary employees who have worked for 90 days or more on or after 1-1-1982 shall be regularised. The petitioner made an application on 22-6-1991 pursuant to such circular letter of the Bank. His case was not considered. Then he filed writ petition before this Court being WP No.13406 of 1991. The learned single Judge of this Court the Hon''ble Sri Justice Syed Shah Mohammed Quadri (As his Lordship then was) disposed of the writ petition at the admission stage on 30-10-1991. The learned single Judge directed the second respondent to consider the representation of the petitioner referred to hereinabove expeditiously within a period of four weeks in accordance with the circular.

It is the case of the petitioner that when the respondents did not act promptly pursuant to the orders of this Court, he got issued a legal notice on 28-12-1991. Then he was asked to appear for an interview by their letter dated 3-2-1992 on 5-3-1992 at 10.00 a.m. He appeared for the interview along with all the relevant documents. Many others also appeared along with him. After the interview, result was not communicated to him. Then he filed Contempt Case before this Court. During the pendency of the case, the Bank informed the petitioner''s Counsel that he was not selected and the Contempt Case was dismissed. It is the case of the petitioner that all other candidates who appeared along with him and worked with him at Mahaboobnagar were permanently absorbed by the Bank. The petitioner also gave the names (1) Shyamasunder (2) Laxmaiah and (3) Yadagiri who were absorbed and who worked at the relevant time. The petitioner alleges that he was singled out and he was discriminated only because he sought redressal before this Court. His representations, quite a few of them, did not find proper reasons. He got issued legal notice on 20-1-1997. The respondents replied through a letter No.PER/GR.VI/7984 dated 5-2-1997 to the petitioner''s Counsel stating that since temporary service rendered by the petitioner was before the specified date i.e. 1-1-1982, he was not found suitable by the Interview Committee for absorption in the Bank. Then he approached this Court contending that strict interpretation of the Circular dated 5-6-1991 issued by the Bank confers a right on him for being permanently absorbed and his non-absorption is gross violation of rights guaranteed under Articles 14 and 16 of the Constitution of India.

The respondents filed their counter. Their mighty effort to thwart the simplest desire of the petitioner for absorption is founded on two grounds i.e., (i) he did not complete 90 days of temporary service in the Bank to become eligible for considering absorption in terms of Government of India Approach paper (ii) and also that he rendered service prior to 1-1-1982 i.e., period before the cut off date fixed in Government of India letter. The respondents, however admitted that the petitioner worked as temporary employee on daily wages for a period of 74 1/2 days, that he worked as Club boy in Employees Recreation Club, and that he is not entitled for the benefit of regularisation as ordered by the Government of India or by the Head Office of the Bank.

In the reply affidavit to the counter of the respondents, the petitioner submitted that he worked as Club boy during the night time in addition to the work as employee of the Bank. That he worked for three months only in the club is denied saying that he was paid extra amount of Rs.50/- for working in the Officers'' Club after dusk. He produced the photo copies of the cheques. He also submitted in reply affidavit that on the basis of circular letter, all the other persons who worked along with him on daily wages were absorbed and they are working as permanent employees in Mahaboobnagar branch.

The learned single Judge after referring to the Approach paper of the Government of India, and the circular letter of the respondent Bank unhesitatingly held that the petitioner complies with the basic requirement of the circular letter of the Bank since there is no effective denial that the period of petitioner''s service as Club boy could not be treated as part and parcel of his duty with the Bank, and the Bank should be ordained to absorb the petitioner in the subordinate cadre.

In this appeal, the learned Counsel for the Bank Sri Jogaiah Sharma submits that as per para 6(c) of the Approach Paper of the Government of India dated 6-2-1990, the temporary employees who are engaged and working on or after 1-1-1982 are to be considered for regularisation and that the cases which pertain to the period before 1-1-1982 should be treated as belated. Therefore only temporary employees who had put in a temporary service of 90 days or more days after cut off date i.e., 1-1-1982 shall alone be regularised. He further contends that in the Bank Circular dated 5-6-1991 the word "on" was wrongly typed before the words "or after 1-1-1982" and therefore the wrong typing of the word shall be treated as clerical mistake which will not confer any right on the writ petitioner. Placing reliance on the Approach Paper of the Government of India, the learned Counsel would further submit that service of the petitioner in the club cannot be treated as the service in the Bank. These two submissions have been met by the learned Counsel for the petitioner Sri N.A. Ashok Kumar. He submits that when the petitioner appeared for the interview pursuant to the orders of this Court in earlier proceedings, his case was rejected not on the ground which is now being urged but on the ground that his service of 90 days which is allegedly before 1-1-1982 cannot confer any right. He further submits that the Bank has admitted that he has a total service of 90 days both in the Bank as well as in the Club, but the only objection raised by them is that the Bank circular does not confer any right because he rendered service in the Bank as temporary employee before the cut off date. The learned Counsel invited our attention to the relevant circular and submitted that the word "on" appearing in the circular before the words "or after 1-1-1982" cannot be treated as a clerical mistake because the same is not appearing in one document but in many documents which has a bearing on the issues involved in this case. He has also tried to persuade us that because he approached this Court earlier seeking benefit under the relevant circular, he is being singled out and the benefit is denied to him.

The problem of regularisation/ absorption of all the temporary employees in the Public Sector Banks was considered by the Department of Economic Affairs (Banking Division) in Ministry of Finance of Government of India. After due consideration of the problem, they worked out an Approach Paper to deal with the problem. The same was communicated to all the members of Indian Banks Association, Bombay in which the respondent Bank is a member. The Government of India, however requested that all Public Sector Banks may follow the provisions laid down in the Approach paper in the recruitment as well as in absorption of the temporary employees. In paragraph 2 of the letter No.F-3/3/104/ 97-IR dated 6-8-1990, the Government of India observed as follows :

"For the staff which is presently on the rolls of the Banks their services will be regularised in terms of the Approach Paper. For the current requirement banks may utilise their existing panel of temporary employees and in case these employees were not taken from the Employment Exchanges the Banks would be required to approach the DGE & T directly seeking exemption. Until the problem of existing temporary employees is fully resolved no Bank will be permitted to make any temporary appointments."

The Approach Paper appended to the letter of the Government of India dated 6-8-1990 traces the history of the practice adopted by various Banks for engaging temporary employees and the methods adopted by the Banks in solving such problems. In paragraph 6 of the Approach Paper guidelines are issued for absorption/regularisation of the temporary employees in subordinate cadre. Paragraph 6(c) of the Approach Paper of Government of India is relevant and it is useful to refer to the same :

"Banks will provide one time opportunity to all the temporary employees by taking 1-1-1982 as cut off date i.e. all those who were engaged as temporary employees by the Bank on or after 1-1-1982 may be considered for re-employment in terms of scheme being discussed as under and hereinabove. The cases if any which pertain to the period before 1-1-1982 and taken up hereafter should be treated as clearly belated and stale and may not be referred for adjudication."

Para 6(h) of the Approach paper however says that only those temporary employees who had put in minimum service of 90 or more days after the cut off date i.e., 1-1-1982 will only be eligible for considering under the scheme.

Based on this approach paper, Bank issued a notice dated 23-5-1991 to all its regional offices. It says that pursuant to the guidelines received from the Government of India, the Bank proposes to give one time opportunity for being considered for empanelment for offering employment against part-lime vacancies of peons or of any other posts in subordinate cadre to those temporary employees who had worked for 90 or more days on or after 1-1-1982 on daily wage basis. This notice of the head office was again communicated to all the branches by the second respondent namely the Regional Manager, State Bank of Hyderabad, Region III, Hyderabad vide letter No.R.III/GR-I/346 dated 5-6-1991. In the very first paragraph of this letter dated 5-6-1991, the second respondent says that one time opportunity for absorption of all temporary employees who have worked for 90 or more days on or after 1-1-1982 shall be given peon/messenger in the subordinate cadre of the Bank.

In the counter-affidavit filed by the Bank before this Court, the Bank has not denied the fact that the petitioner worked in Officers'' Club. In fact when the respondents replied to the legal notice issued by the petitioner by their letter dated 5-2-1997 addressed to the petitioner''s Counsel, they admit that the petitioner has worked in the Bank as temporary employee for a period of 90 days but their objection to regularise the services of the petitioner is their interpretation of the Approach Paper as well as circular of the Bank that the benefit shall be given only to the persons who have put in service of 90 days after the date mentioned in the Circular. As per the Service Certificate dated 7-8-1980, the service particulars of the petitioner are as follows :

From 24-2-1978 to 27-5-1978. The petitioner worked for 31 days in the branch.

From 7-6-1979 to 30-6-1979. The petitioner worked for 171 days in branch.

From 7-7- 1979 to 21-8-1979. The petitioner worked for 26 days.

The service certificate dated 7-8-1980 also shows that the petitioner worked as a casual labour for a period of 74 1/2 days from 24-2-1978 to 31-8-1978 in the branch and he also worked as Club boy for three months from August 1979 to October, 1979. The petitioner contended before the learned single Judge, which found favour with the learned Judge, that his service as Club boy for a period of three months should also be considered for the purpose of eligibility. The learned Judge came to the conclusion that there is no effective denial that the period of petitioner''s service as Club boy could not be treated as part and parcel of the duty with the Bank. When an allegation is made and the same is not denied in the counter-affidavit it should be taken that the same is admitted. To say in other words averments made in the affidavit filed in support of the writ petition which are not controverted by the respondents should be presumed to be admitted. See Naseem Banu v. State of UP., 1993 Supp (4) SCC 46.

Thereafter after going through the affidavits and also the judgment of the learned single Judge, we are of the opinion that the finding recorded by the learned single Judge on this question - whether the petitioner worked for 90 days or not - need not be disturbed. We respectfully arrive at the same conclusion.

The next question that arises for consideration is as to what is the effect of the Approach Paper, the scheme formulated by the Head Office of the Bank, pursuant to the Approach Paper and the letter addressed by the second respondent to all branches.

The learned Counsel for the appellant''s Bank contends that as per paragraph 6(h) of the Approach Paper, it is only temporary employees who had put in a minimum temporary service of 90 or more days after the cut off date i.e., 1-1-1982 will be eligible for considering under the scheme and therefore the petitioner is not entitled for absorption. He submits that this Court has to interpret the words "on or after" as meaning that only the employees who completed the service of 90 days after cutoff date would be eligible. In our opinion, such interpretation is not possible and is not called for.

The object of the scheme is to solve the problem of temporary employees for permanent absorption. After consulting the Indian Banks Association, the Joint Secretary Department of Economic Affairs (Banking Division), Ministry of Finance, Government of India convened a meeting on 29-9-1998. The Committee consisting of the representatives of Punjab National Bank, State Bank of Patiala, Allahabad Bank, State Bank of Bikaner & Jaipur and Oriental Bank of Commerce was constituted. This Committee went into the "problem" of temporary employees and made recommendations for permanent absorption in the Banks under the provisions of Chapter V-A of Industrial Disputes Act, 1947. The said Committee submitted a report on 15-10-1988. As can be seen from the approach paper on the issue of temporary employees in the Banks, the Government of India (presumably the Committee constituted by the Joint Secretary) considered all aspects of the matter. The Government of India also took into consideration the various provisions of Chapter V-A of Industrial Disputes Act, 1947 (the Act). The Approach Paper specifically refers to Section 25-H of the Act which provides that when any workmen are retrenched, and the employer proposes to take into his employment any persons, the employer shall give an opportunity to the retrenched workmen to offer themselves for re-employment and such retrenched workmen who offer themselves for re-employment shall have preference over other persons.

After considering all the aspects, the Approach paper recommended for regularisation/absorption of all the workmen/ temporary employees who worked in subordinate cadre. However, the Approach paper clearly says that the benefit shall go only to the employees who were engaged on or after 1-1-1982. Though the rationale behind fixing 1-1-1982 as the cut off date is not forth-coming either from the Approach Paper or from the Government of India''s letter, it may be concluded that the various amendments made to the Act with effect from 18-8-1994 were kept in view by the Committee constituted by the Government of India. This Approach paper was communicated by the Government of India by letter No.F-III/104/97-IR dated 6-8-1990. The said letter does not say that the scheme applies only to the temporary employees who worked in the Banks after 1-1-1982, A reading of the said letter suggests contra and goes to the extent of saying that the Banks are required to approach the Director General of Employment and Training seeking for exemption. This only means that the intention behind formulating the scheme is never to deny the benefit of absorption to all the employees who worked prior to 1-1-1982. This view further gets support even from the absorption scheme formulated by the first respondent pursuant to the Approach paper. It says that the Bank proposes to give one time opportunity for being considered for empanelment for offering employment against part-time vacancies of peons to those temporary employees who worked for 90 or more days on or after 1-1-1982 on daily wages. The same was also reiterated by the second respondent in his letter dated 5-6-1981 communicated to all branches.

When a person has to fulfill the qualification, he should work for 90 days on or after 1-1-1982, can it be said that the service rendered before 1-1-1982 cannot be counted for the purpose of eligibility under the scheme? When the Government of India bestowed considerable attention to solve the problem of temporary employees, it is well aware that the subject matter was also discussed in various settlements, but a decision could not be arrived at. The Approach Paper also says that the benefits under Chapter V-A of the Act should also be given to these temporary employees in subordinate cadre. Therefore, in our view I the words "on or after" cannot be restricted to the meaning as suggested by the learned Counsel for the Bank. The words "on or after" in the context and in the light of object behind the Approach paper and the scheme mean the service rendered even before 1-1-1982 by temporary employees can also be taken into consideration. The scheme is one time opportunity to be given to all temporary employees. Therefore, this cannot be lost sight of. As per the scheme one time opportunity means, a person who has completed 90 days of temporary service a on 1-1-1982 and also after 1-1-1982 shall be regularised by empanelling him for the post. The words "on or after" appearing in the approach paper of the Government of India, the scheme formulated by the Bank and the letter communicated by the second respondent do not leave any doubt to hold that the scheme is also applicable to all the temporary employees like the petitioner who have completed 90 days even prior to 1-1-1982. If the phrase "on or after 1-1-1982" is not interpreted in the way it is interpreted by us, the same will be rendered constitutionally invalid, because it seeks to introduce a pernicious classification between two groups of temporary employees; those who are appointed prior to 1-1-1982 and those who are appointed after 1-1-1982. Such classification has no nexus with the object sought to be achieved by the scheme.

The right to public employment is a right to have a share in the National wealth. It is well settled that public employment is a form of wealth and every citizen has a share in it. This was held by the Hon''ble Supreme Court in State of Maharashtra Vs. Chandrabhan Tale, . Further, India being a Socialist Republic, every citizen of this Country has a right to free choice of employment and right to protection against un-employment. It is apposite to refer to the observations of the Supreme Court in Daily Rated Casual Labour Employed under P and T Department Vs. Union of India (UOI) and Others, :

"India is a socialist republic. It implies the existence of certain important obligations which the State has to discharge. The right to work, the right to free choice of employment, the right to just and favourable conditions of work, the right to protection against unemployment, the right of every one who works to just and favourable remuneration ensuring a decent living for himself and for family, the right of every one without discrimination of any kind to equal pay for equal work, the right to rest leisure, reasonable limitation on working hours and periodic holidays with pay, the right to form trade unions and the right to join trade unions of one''s choise and the right to security of work are some of the rights which have to be ensured by appropriate legislative and executive measures. It is true that all these rights cannot be extended simultaneously. But they do indicate the socialist goal. The degree of achievement in this direction depends upon the economic resources, willingness of the people to produce and more than all the existence of industrial peace throughout the country. Of those rights the question of security of work is of utmost importance. If a person does not have the feeling that he belongs to an organisation engaged in production he will not put forward his best effort to produce more. That sense of belonging arises only when he feels that he will not be turned out of employment the next day at the whim of the management. It is for this reason it is being repeatedly observed by those who are in charge of economic affairs of the countries in different parts of the world that as far as possible security of work should be assured to the employees so that they may contribute to the maximisation of production. It is again for this reason that managements should not allow workers to remain as casual labourers or temporary employees for an unreasonably long period of time."

In another land-mark judgment in Jacob M. Puthuparambil and others Vs. Kerala Water Authority and others, , the Hon''ble Supreme Court referred to the observations made in Daily R.C. Labour P&T Dept. v. Union of India, (supra) and held as follows:

"India is a developing country. It has a vast surplus labour market. Large-scale unemployment offers a matching opportunity to the employer to exploit the needy. Under such market conditions the employer can dictate his terms of employment taking advantage of the absence of the bargaining power in the other. The unorganised job seeker is left with no option but to accept employment on take-it-or-leave it terms offered by the employer. Such terms of employment offer no job security and the employee is left to the mercy of the employer. Employers have betrayed an increasing tendency or employ temporary hands even on regular and permanent jobs with a view to circumventing the protection offered to the working classes under the benevolent legislations enacted from time to time. One such device adopted is to get the work done through contract labour. It is in this backdrop that we must consider the request for regularisation in service."

In the above case, the Supreme Court also gave benefit of regularisation of the temporary employees working in Kerala Water Authority prior to a prescribed date.

A beneficial scheme has to be interpreted so as to make it in tune with the object for which the scheme is formulated. In our view the scheme which is one time opportunity for regularisation to all the employees is also made with the purpose of conferring the benefits under Chapter V-A of Industrial Disputes Act, 1947. Section 25-H of the Act appearing in Chapter V-A of the Act confers a preferential right on all the retrenched employees of the employer to be regularised as and when such regularisation is taken up. Therefore our interpretation of the scheme especially the words "on or after 1-1-1982" is also in accordance with Chapter V-A of the Act. In this connection we are of the opinion that whenever a beneficial legislation or beneficial scheme is to be interpreted by the Courts, the object behind such statutory or non-statutory instrument or the Act has to be asscertained. Then it is to be seen what is the Directive Principle which is sought to be achieved or implemented by the enacting authority, rule making authority or scheme formulating authority. Such a reading of the provisions with the relevant Directive Principles would lead to correct and justifiable conclusion that the scheme under examination does not exclude the temporary employees who worked prior to 1-1-1982. As already held both on the strength of the material placed before us and also on interpretation of the pleadings in the case we record the finding that the petitioner worked for more than 90 days prior to 1-1-1982. The scheme does not prohibit regularisation/absorption of the petitioner in any post in subordinate cadre.

Therefore, we dismiss the writ appeal with costs. The appellants shall pay Rs.2,000/- towards costs of the respondent.