Important PointJewel appraisers appointed by bank could not be said to employee of bank where there were no fixed period of work and Bank did not exercise any disciplinary control and amount was paid to them on commission basis by loanee and not by bank.

Headnote:Industrial Disputes Act, 1947—Section 2(s)—Workmen—Whether "jewel appraisers for loans" were to be treated as workers and were to be absorbed as part time clerical staff of Bank—Tribunal relying upon decision in Indian Bank’s case answered the reference in affirmative—Judgment was affirmed by High Court—Appeal—Bank on basis of contracts had employed jewel appraisers mainly in rural branches in various states where bank advanced agricultural loans—Respondent union raised a dispute that jewel appraisers were part time workers of bank—Evidence to show that there were no fixed period of work and they could come and go at any point of time—Bank did not exercise any disciplinary control—Amount was paid on commission basis by the loanee and not by the bank—Jewel appraisers were required to weigh ornaments brought to bank for pledge and to appraise quality, purity and value but they could not be asked the manner in which it was to be done—It was not obligatory for Bank to allot work to any particular jewel appraiser—Jewel appraisers were not the employees of Bank—Impugned judgment was liable to be set aside.
       Held : A few distinguishing facts need to be noted. In Indian Bank’s case (supra) there was evidence to show that the jewel appraisers work regularly for four hours. It was clearly admitted in the instant case by the witness of jewel appraisers that there were no fixed period of work and they could come and go at any point of time. In Indian Bank’s case (supra) the bank had disciplinary control on the jewel appraisers. In the instant case it was admitted by the witnesses that the Bank did not exercise any disciplinary control. In Indian Bank’s case (supra) conditions were to be fulfilled before any leave was granted. In the present case the jewel appraisers were not required to sign attendance register and also were not required to make any leave application. The most relevant factor in Indian Bank’s case (supra) was that the jewel appraisers were paid a minimum amount per month which was somewhat akin to salary. In the instant case, the amount was paid on commission basis by the loanee and not by the bank. 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. (Paras 14 & 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 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 and age prescribed
       2. Recruitment through Employment exchange/Banking Service Recruitment Board.
       3. Fixed working hours
       4. Monthly wages

       5. Subject to disciplinary control
       6. Control/supervision is exercised not only with regard to the allocation of work, but also the way in which the work is to be carried out.
       7. Wages are paid by the Bank.
       8. Retirement age
       9. Subject to transfer
       10. While in employment cannot carry on any other occupation.
       Therefore, the jewel appraisers are not employees of the Bank. (Paras 17 to 19)

Judgment

Arijit Pasayat, J.—The Indian Overseas Bank (hereinafter referred to as the ‘Bank’) calls in question legality of view expressed in a judgment rendered by the Industrial Tribunal, Tamil Nadu, Chennai (hereinafter referred to as the ‘Tribunal’) which was affirmed by learned Singh Judge of the Madras High Court. The judgment of the Division Bench is the subject-matter of challenge in this appeal.

2. The core question which falls for adjudication in this appeal is whether "jewel appraisers for loans" are to be treated as workers and are to be absorbed as part time clerical staff of the Bank. Stand of the appellant is that jewel appraisers are not employees of the bank and do not do any substantial work.

3. Background facts in a nutshell are as follows :

The bank on the basis of contracts had employed about 767 jewel appraisers mainly in the rural branches in the States of Tamil Nadu, Pondicherry, Andhra Pradesh, Karnataka, Kerala and few branches in Bihar and Orissa. Bank advances agricultural loans to its constituents and also members of the staff. The All India Indian Overseas Bank Employees Union (in short the ‘Union’) raised a dispute taking the stand that the jewel appraisers engaged by the bank are part time workers of the bank. On the basis of the demand raised reference was made by the Central Government and on 19.2.1990 following dispute was referred to the Tribunal for adjudication :

"Whether the demand of All India Overseas Bank Employees Union to treat the jewel appraisers engaged by the Bank as part time workmen of the Bank is justified ? If so, to what relief, if any, are they entitled ?"

4. In support of the demand the stand taken was that the jewel appraisers employed for particular branches of the bank are also utilized for certain clerical jobs like entering applications for jewel loans. They are also to go other branches as to the appraisers of the jewel. These jewel appraisers are required to be present in the respective branches between 10 a.m. to 2.00 p.m. as a request for jewel loan is considered and granted only during that period. They are paid a commission of Rs.3/- for every one thousand rupees sanctioned by way of loan. Reference was made to another dispute i.e. ID 25 of 1997 raised by jewel appraisers numbering about 353 in Indian Bank where a reference had been made to the Tribunal. The reference reads as follows :—

"Whether the action of the Management of the Indian Bank, Madras in denying to appraisers wages and other conditions of service applicable to rural clerical "Award Staff" of the Bank of justified? If not to what relief the workmen concerned are entitled to?"

5. Reference in that case was made on the ground that the jewel appraisers of Indian Bank were workmen and they were denied only wages and other service conditions as they were paid monthly remuneration of Rs. 100/-. The said dispute was adjudicated and an award was made on 3.12.1979 holding that the jewel appraisers of Indian Bank are entitled to wages and other conditions of service applicable to regular clerical staff as part time employee of the Bank and they would be entitled to such proportionate (namely half) wages and benefits of clerical staff w.e.f. 1.4.1977 i.e. the date of reference. The award was questioned before the High Court which was dismissed. Letters Patent Appeal was also dismissed by the Division Bench and S.L.P. was also dismissed by this Court.

6. Stand of the Union, therefore, was that the view expressed in the Indian Bank’s case (supra) was clearly applicable to this case. Claim of the Union was resisted by the appellant-Bank basically on the ground that jewel appraisers engaged by the Bank are not workmen as defined in Section 2(s) of the Industrial Disputes Act, 1947 (in short the ‘Act’). Reference was made a decision of this Court in Management of Puri Urban Co-operative Bank v. Madhusudan Sahu and Anr. (1992 (II) LLJ 6). Further it was submitted that the Bank has branches in various states and, therefore,

Click Here to Read the rest of this document

2006 Supreme(SC) 230

Important PointJewel appraisers appointed by bank could not be said to employee of bank where there were no fixed period of work and Bank did not exercise any disciplinary control and amount was paid to them on commission basis by loanee and not by bank.

Cases Referred (5)