Open iDraf
M.g. Datania And Others v. Reserve Bank Of India And Another

M.g. Datania And Others
v.
Reserve Bank Of India And Another

(Supreme Court Of India)

C. A. No. 7407 of 1994 with No. 7406 of 1994, 3232, 3189 of 1995 | 28-11-1995


1. These appeals raise common questions regarding regularisation as regular mazdoors of ticca mazdoors engaged on daily wage basis at the Ahmedabad Branch of Reserve Bank of India (hereinafter referred to as "the Bank"). Civil Appeals Nos. 7406 and 7407 of 1994 arise out of Special Civil Application No. 4669 of 1987 filed in the Gujarat High Court by 35 such ticca mazdoors. The said application was allowed by the learned Single Judge by his judgment dated 13-2-1991, whereby the Bank was directed to regularise the petitioners in that petition as mazdoors in regular employment of the Bank and to grant them all other benefits flowing from such regularisation with effect from 1-10-1987, the date of the institution of the said petition. The Bank was also directed to pay to the said petitioners all the benefits flowing from such regularisation. The letters patent appeal (LPA No. 99 of 1991) filed by the Bank against the said judgment of the learned Single Judge was disposed of by the Division Bench of the High Court by judgment dated 30-11-1993, whereby the date of regularisation was altered from 1-10-1987 to 1-1-1991. Out of 35 petitioners who had moved the High Court, initially 7 ceased to be interested in the matter and, therefore, the directions of the Division Bench were confined to the remaining 28 ticca mazdoors. Civil Appeal No. 7406 of 1994 has been filed by the Bank against the said judgment of the Division Bench of the High Court, while Civil Appeal No. 7407 of 1994 has been filed by the 28 petitioners. Two other ticca mazdoors filed a separate petition (Special Civil Application No. 2216 of 1991) in the Gujarat High Court seeking the same relief as was sought by the ticca mazdoors in Special Civil Application No. 4669 of 1987. The said writ petition was allowed by the learned Single Judge by his judgment dated 8-12-1993, wherein, following the earlier judgment of the learned Single Judge dated 13-2-1991 passed in Special Civil Application No. 4669 of 1987 and the judgment of the Division Bench of the High Court in Letters Patent Appeal No. 99 of 1991, it was directed that the said two employees be also regularised as regular mazdoors with effect from 1-1-1991. The letters patent appeal (LPA No. 289 of 1994) filed by the Bank against the judgment of the learned Single Judge was dismissed by the Division Bench of the High Court by judgment dated 20-9-1994. Civil Appeal No. 3232 of 1995 has been filed by the Bank against the said judgment of the Division Bench of the High Court while Civil Appeal No. 3189 of 1995 has been filed by the two petitioners against the said judgment.

2. In the writ petitions, the case of the petitioners who moved the High Court, hereinafter referred to as "the petitioners", is that they had been selected for appointment on the post of regular mazdoors in the Bank and were placed on the waiting list. Since the posts of regular mazdoors were not available, they were not given employment as regular mazdoors and they have been working as ticca mazdoors on daily wage basis since 1984. On 24-7-1987, the Bank sent a requisition to the local Employment Exchange, Ahmedabad, to sponsor names for regular appointment on the post of peons and that since posts of peons were available for appointment, they claimed that they were entitled to be given regular employment on the said posts before an outsider could be considered for such appointment. In that context, the petitioners have submitted that the duties that were being discharged by the petitioners as ticca mazdoors were not different from those that were discharged by peons and that many times the petitioners, as ticca mazdoors, had performed the duties of peons. The writ petitions were contested by the Bank. The case of the Bank was that there was no vacancy on the post of regular mazdoor and that the post of peons or darwans is different from that of regular mazdoor. It was submitted that a ticca mazdoor was engaged on daily wage basis in a contingency arising on account of the absence of a regular mazdoor and that in the Bank mazdoors are employed in the Cash/Issue Department to assist the Coin - Note Examiners and that there is a specific ratio of 4 Coin - Note Examiners to one mazdoor which is required to be maintained for the smooth functioning of the Department. Since absenteeism prevails in this class of employees, particularly during certain seasons, in order to keep the work in the Cash/Issue Department going on smoothly, the Bank has to engage, on purely casual basis, ticca mazdoors in contingencies in which the required strength of mazdoors to assist Coin - Note Examiners in the Cash/Issue Department is not available in spite of available leave reserves. Such requirement is highly contingent, uncertain and fluctuating. It was also pointed out by the Bank that at times ticca mazdoors are given work even during absenteeism of peons or darwans but it is stated that the ticca mazdoors who are employed in absence of peons or darwans do not perform and cannot be required to perform all functions of peon for darwan and that a ticca mazdoor who is given work of a peon does not perform and cannot be required to perform the following functions:

(i) delivery of vouchers to Deposit Accounts Departments etc.;

(ii) taking cash for booking of air tickets etc. in respect of officers for official work;

(iii) delivery of payment order to TCI;

(iv) collecting railway tickets on behalf of officials of the Bank in whose cases arrangements for booking of rail tickets for official purposes has been made with TCI; and

(v) handling the cases which are of secret/confidential nature.


3. It was also pointed out by the Bank that the minimum/maximum educational qualifications for recruitment of peons are Standard VII/matriculation whereas for mazdoors it is Standard IV/IX. As regards darwans, it was pointed out that in or about the year 1980 the existing darwan staff was bifurcated into two categories, namely, security guards and darwans and that the Central Office of the Bank took a decision that recruitment would be initially made to the cadre of darwans only and that the post of security guard should be treated as a promotional post and that all vacancies in the cadre of security guards should be filled from amongst darwans on the basis of seniority cum suitability and that recruitment to the cadre of darwans be made exclusively from ex servicemen.

4. The learned Single Judge has compared the duties of ticca mazdoors with regular peons and, after noticing that certain functions were not required to be discharged by ticca mazdoors when they were performing the duties of peons, the learned Single Judge has observed:


"Mere look at the duties would show that these duties can well be performed by the petitioners or any other ticca mazdoor if they are called upon to perform. List of duties which the ticca mazdoors are not permitted to perform do not require expertise. They are not performed by the ticca mazdoors because they are not called upon to perform the same. Rest of the duties which the ticca mazdoors perform are similar and identical to the duties performed by regular mazdoors. Therefore, nature of work also does not and should not make any difference."


5. At a later stage, the learned Single Judge, after taking note of the fact that the educational qualifications prescribed for the post of peons are higher and for the post of darwans in a banking institution like the Bank, some stringent requirements are prescribed, has observed:

"Leaving aside for the time being the posts of peons and darwans, if one concentrates on the post of regular mazdoors one finds that there is no justification for denying regular appointment to the petitioners for the post of regular mazdoors when Reserve Bank tried to fill in the posts of regular mazdoors in its regular establishment by giving fresh advertisement and by preparing list of 120 persons in total disregard of the claims of the petitioners for such posts."


6. The aforesaid observations would indicate that the learned Single Judge has proceeded on the basis that the posts against which regular appointment was being made by the Bank and for which the names were called from the employment exchange were posts of regular mazdoors because in view of the distinction between the posts of regular mazdoors and the posts of peons and darwans in the matter of educational qualifications and other conditions regarding recruitment the learned Single Judge had excluded the said posts from consideration. In proceeding on the basis that the posts on which regular appointment was to be made were the posts of regular mazdoors, the learned Single Judge has committed an error because the requisition which was sent by the Bank to the employment exchange related to 20 posts of peons and in the requisition it was further indicated that the candidates are to be wait listed which means that they were to be appointed against vacancies which were to occur in the future.

7. As regards the judgment of the Division Bench of the High Court, it may be stated that while the letters patent appeal (LPA No. 99 of 1991) was pending in the High Court, a settlement was arrived at on 23-7-1993, between the management of the Bank and the Reserve Bank Workers Federation. The said settlement deals with the matter of regularisation of persons engaged purely on temporary and ad hoc basis in Class IV and as ticca employees on daily wage basis. Under the settlement, it was agreed as under:


"Terms of settlement

(i) The existing arrangement or practice of engaging persons on daily wages purely on temporary and ad hoc basis in Class IV in various cadres shall be discontinued forthwith.

(ii) The leave reserve in the case of mazdoors employed in the Cash Department shall be increased from the existing level of 15% to 25%. (iii) The leave reserve in other categories in Class IV shall be increased from the existing level of 15% to 20%.

(iv) The additional posts that may be created or may arise as a consequence of paragraphs (ii) and (iii) above, together with existing vacancies, if any, shall be utilised for giving (a) full time employment to part time employees to the extent possible, and (b) regular full time or part time employment, as the case may be, to the ticcas who have rendered continuous service of three years or more as on 19-11-1992. However, if the number of available vacancies at a particular centre is less than the number of such ticcas at that centre to be given regular full time/part time appointments, the ticcas in excess of the available vacancies at that centre shall have to move at their own cost to another centre where vacancies are available after absorbing eligible ticcas at that centre on a returnable basis as and when vacancies arise in the parent centre. Such repatriation being in the nature of request transfer, shall be at their own cost and also subject to usual terms and conditions prescribed in respect of request transfers. Such of the ticcas who are not willing to the above arrangements shall have no claim to be absorbed in the Bank.

(v) The Federation shall not under any circumstances insist on engagement of ticcas on daily wage basis for carrying out the Banks work smoothly and without any hindrance or disturbance in any section/department including the Cash Department of the Bank irrespective of number of employees absent for any reason whatsoever. In other words, notwithstanding any absenteeism in Class IV cadre (any group), the work of the Bank shall be carried on by and with the assistance of the employees present on any given day. If, however, there is an increase in the Banks normal work on a long term basis it would review the overall strength in Class IV cadre at the centre concerned in the normal course."


8. The said settlement was brought to the notice of the Division Bench of the High Court, but the learned Judges did not attach any importance to the same on the ground that the petitioners, who had moved the High Court, were not parties to the said settlement and they were not bound by it. By the judgment dated 30-11-1993, the Letters Patent Appeal Bench upheld the direction given by the learned Single Judge regarding regularisation of the petitioners but with regard to the date of regularisation the learned Judges altered the said date from 1-10-1987 fixed by the learned Single Judge to 1-1-1991. It has been submitted that this date was fixed having regard to the fact that during the pendency of the letters patent appeal an interim order had been passed on 7-9-1991, whereby it was directed that the Bank shall regularise the petitioners services in the category of mazdoors in the available vacancies subject to the reservation requirement and the Bank was also directed to pay full daily wage instead of three fourth daily wage and directions were also given regarding payment of wages for Saturday, Sunday and holidays declared under the Negotiable Instruments Act.

9. During the pendency of these appeals in this Court, an affidavit has been filed by Shri G. Subramanian, Deputy Manager in the Bank, wherein it is stated that in accordance with the settlement dated 23-7-1993, the vacancies in the various cadres on all India basis have been determined and, in all, as against 988 ticca mazdoors on wait list at various centres of the Bank, 859 persons have been/are in the process of being absorbed in the service of the Bank. Along with the said affidavit, a list of the persons who have been absorbed has been filed which shows that absorption has been made in the Ahmedabad centre also. It has been pointed out that insofar as the petitioners in these appeals are concerned, they have all been absorbed with effect from 31-5-1994.

10. Shri Pallav Shishodia, the learned counsel appearing for the petitioners, has, however, urged that the petitioners are entitled to be absorbed with effect from 1-10-1987, as directed by the learned Single Judge, and, in this regard, he has submitted that the post of peon on which regular selection was to be made and for which names were called from the employment exchange in 1987, is interchangeable with that of a regular mazdoor. Shri Shishodia has submitted that switchover from one post in Class IV to another post in Class IV has been going on in the Bank and, therefore, it cannot be said that the petitioners, who were working as ticca mazdoors, could not be regularised on the post of peon for which regular selection was to be made in the year 1987. In our view, there is no merit in this contention. As noticed earlier, the post of peon, though falling under Class IV category, carries certain duties which could not be entrusted to mazdoors. Moreover, the educational qualifications that are prescribed for appointment on the post of peon are not the same as those prescribed for the regular mazdoors. In these circumstances, it is not possible to hold that since there were vacancies available on the post of peons in 1987, the petitioners, who were employed as ticca mazdoors on daily wage basis, were entitled to be regularised on the post of peon. In fact, the learned Single Judge has not considered the matter in the context of regularisation of the petitioners on the post of peons. On the other hand, having regard to the qualifications that are prescribed for the post of peon and the mode of recruitment for the post of darwan, he has left aside the posts of peons and darwans and has dealt with the grievance of the petitioners only for regularisation on the post of regular mazdoors. As indicated earlier, this could not be done because no post of regular mazdoor was available in 1987 against which the petitioners could be regularised.

11. Another contention that has been urged by Shri Shishodia is that since the petitioners had been actually working as ticca mazdoors, it is evident that there was work for the post of regular mazdoors at the Ahmedabad centre of the Bank and merely because regular posts were not created by the Bank, the petitioners cannot be denied regularisation on the post of regular mazdoors. Shri Shishodia has urged that each of the petitioners had worked as ticca mazdoors for more than 280 days in a year. We find it difficult to accept this contention. As noticed earlier, a ticca mazdoor was being engaged only in the contingency of a regular mazdoor remaining absent which shows that ticca mazdoors were not being engaged every day. They used to be engaged only on those days on which there was need of a mazdoor in the place of a regular mazdoor who was absent. It cannot, therefore, be said that there was need for additional posts of regular mazdoors against which the petitioners could seek regularisation. Moreover, the question whether there was a need for creation of additional posts of regular mazdoors at the Ahmedabad centre of the Bank and what was the extent of that need is a matter which the Bank alone could determine. This matter has been dealt with in the settlement dated 23-7-1993, and, in accordance with the said settlement, additional posts of regular mazdoors have become available and the petitioners have been regularised against those posts with effect from 31-5-1994. The direction by the Court for regularisation of the petitioners with effect from 1-10-1987 or 1-1-1991 is, in substance, a direction to the Bank to create an equal number of additional posts of regular mazdoors from these dates. Such a direction is impermissible.

12. We cannot also lose sight of the fact that the settlement dated 23-7-1993 arrived at between the management of the Bank and the employees union, covers regularisation of ad hoc daily wage employees including ticca mazdoors in the various centres of the Bank in the country. The object of the settlement is to find a solution to the problem of regularisation of such employees in order to secure industrial peace and harmony. A direction for regularisation in respect of some employees in one centre of the Bank which runs contrary to the said settlement is bound to create dissatisfaction and disharmony amongst other employees similarly situate who are not granted similar relief. This would defeat the object of the settlement.

13. For the reasons aforementioned, the directions given by the High Court regarding regularisation of the petitioners cannot be upheld and the petitioners will have to be treated as having been regularised with effect from 31-5-1994, from which date they have been regularised as per the settlement dated 23-7-1993. Civil Appeals Nos. 7406 of 1994 and 3232 of 1995 filed by the Bank are, therefore, allowed and the judgment of the Division Bench of the High Court dated 30-11-1993 in LPA No. 99 of 1991 and the judgment dated 20-9-1994 in LPA No. 289 of 1994 as well as the judgment of the learned Single Judge dated 13-2-1991 passed in Special Civil Application No. 4669 of 1987 and the judgment dated 8-12-1993 passed in Special Civil Application No. 2216 of 1991 are set aside and Special Civil Applications Nos. 4669 of 1987 and 2216 of 1991 filed by the petitioners in the High Court are dismissed. Consequently, Civil Appeals Nos. 7407 of 1994 and 3189 of 1995 filed by the petitioners are dismissed. But in the circumstances, we make no order as to costs.

Advocates List

For the Appearing Parties ----

For Petitioner
  • Shekhar Naphade
  • Mahesh Agrawal
  • Tarun Dua
For Respondent
  • S. Vani
  • B. Sunita Rao
  • Sushil Kumar Pathak

Bench List

HON'BLE MR. JUSTICE S.C. AGRAWAL

HON'BLE MR. JUSTICE G.B. PATTANAIK

Eq Citation

(2004) 10 SCC 451

LQ/SC/1995/1218

HeadNote

Labour Law — Employment — Different posts — Peon and mazdoor — Not interchangeable terms — Post of peon is different from that of mazdoor and posts of peons and darwans are different from post of regular mazdoors and posts of peons and darwans are not interchangeable with post of mazdoors and posts of peons and darwans are not interchangeable with post of regular mazdoors