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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
RAMALINGAM SUDHAKAR, SANJEEV KUMAR, JJ.
J&K Bank Limited & Ors. - Petitioners
Versus
Central Govt. Industrial Tribunal and others - Respondents
LPAOW No.96, 97, 95, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108,109, of 2013, MP No.116, 115, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129 Of 2013
Decided On : 16-04-2018
Regularization - Industrial Disputes - Industrial Disputes Act, 1947 - Section 2(k), Section 7, Section 7A - The dispute referred to the Tribunal for adjudication was an industrial dispute amenable to the jurisdiction of the Tribunal. The Tribunal has the jurisdiction and competence to adjudicate upon all disputes enumerated in the Second Schedule and the Third Schedule of the Act. The power of the Industrial Court/Tribunal is not unbridled and is circumscribed by the subject matter with which it is dealing and the existing industrial law. The Industrial Tribunal has the jurisdiction to order regularization of service of a workman subject to certain conditions. The direction for regularization of service of a workman is subject to conditions such as unfair labour practice, continuous work against substantive posts, fulfillment of eligibility qualification, and non-discrimination. The appellant-Bank being a private entity, incorporated under the Companies Act, is not supposed to follow any procedure statutorily laid for creation of posts which may also require financial concurrence as is the case with the Government and the public sector undertakings. The Appellant-Bank being repository of all powers including laying down the service conditions of its employees can very well order regularization of its workers and simultaneously create the posts therefor.
Fact of the Case:
The respondents-workmen were engaged by the appellant-Bank as Armed Guards-cum-Night Watchmen on temporary basis and sought regularization of their services on the basis of their continuous officiation as armed guards against the substantive vacancies. The respondents-workmen relied upon Shastri’s Award and Bipartite agreements to bolster their claim and the plea of the unfair labour practice indulged in by the appellant-Bank, was specifically raised.
Finding of the Court:
The Court found that the engagement of the respondents-workmen was against available vacant posts and continuation of the respondents-workmen in temporary/contractual capacity for years together despite availability of vacant posts was aimed at depriving them of the status and privileges of the permanent workmen and, therefore, would clearly amount to unfair labour practice. The Court upheld the directions issued by the Tribunal to give effect to the regularization of the respondents-workmen.
Issues: The questions that fell for consideration were: (I) Whether the Tribunal had the jurisdiction to entertain and adjudicate upon the dispute pertaining to the regularization of the respondents-workmen referred to it by the Central Government? (II) Whether the Tribunal was correct in law and fact to direct the appellant-Bank to frame a scheme of regularization of respondents-workmen within a period of three months and providing further that in case of failure of the appellant-bank to do so, the respondents-workmen would be deemed to have been regularized?
Ratio Decidendi: The Tribunal has the jurisdiction and competence to adjudicate upon all disputes enumerated in the Second Schedule and the Third Schedule of the Act. The power of the Industrial Court/Tribunal is not unbridled and is circumscribed by the subject matter with which it is dealing and the existing industrial law. The Industrial Tribunal has the jurisdiction to order regularization of service of a workman subject to certain conditions. The direction for regularization of service of a workman is subject to conditions such as unfair labour practice, continuous work against substantive posts, fulfillment of eligibility qualification, and non-discrimination.
Final Decision: The Court dismissed the appeals and directed the appellant-Bank to implement the award of the Tribunal forthwith and in any case within a period of three months from the date of the judgment, failing which the consequences as envisaged in the award of the Tribunal shall follow.
Sanjeev Kumar, J.
1. In this batch of appeals filed by the Jammu & Kashmir Bank Limited, a common judgment of a learned Single Judge dated 27.09.2013 passed in a bunch of writ petitions has been called in question. Since identical questions of law and fact are involved in these appeals, as such, all appeals are disposed of by this common judgment.
2. An advertence to the factual antecedents leading up to the filing of these appeals would be advantageous to appreciate the controversy involved in proper perspective.
3. The respondents-workmen were engaged by the appellant-Bank as Armed Guards-cum-Night Watchmen on temporary basis on consolidated charges of Rs.2,000/- per month by order dated 04.04.2000 in almost all cases initially for a period of two months, somewhere in the year 2000. On completion of initial period of two months, their engagement appears to have been extended from time to time. However, in the year 2001, the engagement of the respondents-workmen which was initially made on temporary basis was converted into contractual subject to new terms and conditions. This contractual appointment made in the year 2001 was for a period of two years and later on extended from time to time for over a decade or more. There is, thus, no dispute that the respondents-workmen have been in continuous service of the appellant-Bank from the year 2000-2001 and had, thus, rendered continuous service of more than five years when the proceedings came to be instituted before the Central Government, Industrial Tribunal-Labour Court (hereinafter to be referred to as “the Tribunal” for short).
4. The respondents-workmen who had served for almost five years, apprehending that their services would be terminated by the appellant-Bank by treating their engagement as contractual approached the competent forum for redressal of their grievance. In the aforesaid background and on the basis of their continuous service, the respondent-workmen staked their claim for regularization. Having failed to evoke any response from the appellant-Bank, the respondents-workmen approached the Central Government for reference of the industrial dispute regarding their regularization against substantive posts of Armed Guards in the Bank. The Central Government accepted the plea of the respondents-workmen and vide its order dated 01.08.2005 referred the industrial dispute for adjudication to the Tribunal. The dispute which was referred to the Tribunal for adjudication would read thus:-
“Whether the action of management of J&K Bank Ltd; represented through Chairman, J&K Bank Ltd; in not regularizing the services of Shri Swaran Singh, Armed Guard w.e.f. 4.4.2000 is legal and justified? If not; what relief workman is entitled to and from which date?
5. We have reproduced the reference order made in favour of Sh. Swaran Singh. Identical references were made by the Central Government in the cases of other workmen as well.
6. Before the Tribunal, the workmen substantiated their claim to regularization on the basis of following grounds:-
(a) In View of Shastri’s award of 1953 as modified from time to time by several Bipartite settlements to which the appellant-bank was a party, the appellant-bank could have made the temporary appointments for limited period only, if such work was essentially of temporary nature or there was a temporary increase in work of a permanent nature or in a temporary vacancy caused by the absence of a permanent workmen (para 20.7 Bipartite settlement dated 19.10.1996).
(b) Since they had been appointed against clear vacant posts and had been continued for years was sufficiently indicative of the fact that the work being performed by the respondents-workmen was of perennial nature and, therefore, they were entitled to the protections as envisaged under Section 25B of the Industrial Disputes Act, 1947 (hereinafter referred to as “the Act”).
(c) The act of the appellant-Bank in appointing the respondent-workmen in temporary/contractual capacity in viola
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