Bank of India Vs. Central Government Industrial Tribunal No. 2 and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/361847
SubjectLabour and Industrial;Civil
CourtMumbai High Court
Decided OnApr-11-2005
Case NumberW.P. Nos. 85 and 1522 of 1992
JudgeB.P. Dharmadhikari, J.
Reported in2006(2)BomCR865; [2006(107)FLR1019]; 2005(4)MhLj115
ActsConstitution of India - Article 226
AppellantBank of India
RespondentCentral Government Industrial Tribunal No. 2 and ors.
Appellant AdvocateA.S. Jaiswal, Adv. in W.P. No. 85 of 1992 and ;Rohit Deo, Adv. in W.P. No. 1522 of 1992
Respondent AdvocateRohit Deo, Adv. for respondent Nos. 2 to 17 in W.P. No. 85 of 1992 and ;A.S. Jaiswal, Adv. in W.P. No. 1522 of 1992
Excerpt:
- - he further argues that the workmen have worked in various branches but nature of their work was like leave reserve, sub-staff i. reported at 1998 (2) clr 194, to contend that availability of permanent vacancies for absorption of these 16 workmen were available on 11-10-1985 was the burden squarely placed on the shoulders of employer and the employer has failed to discharge the same. this fact is clearly reflected from the documents produced by the bank. subramaniam has referred to the sub-staff strength in the branches of bombay as well as all over the country and the vacancies during the relevant period in details. the said evidence and that is substantially not disputed by the bank, clearly reveals that the sub-staff strength in bombay at the time tulpule award was given was frozen at 194 while the sub-staff strength as on august, 1995 was 124. in the year 1992 the bank did invite applications for filling up the vacancies of the sub-staff and pursuant to the said advertisement, 18 permanent posts in the sub-staff cadre were filled in. the evidence discussed above clearly shows that the employer-bank did not demonstrate that on 11-10-1985 there were no vacancies available for absorption of these 16 workmen. on the basis of provisions of shastri award, these 16 workmen ought to have been treated as either the permanent workmen or at worst, the temporary workmen by bank.b.p. dharmadhikari, j.1. heard shri rohit deo, advocate for the workmen and shri jaiswal, advocate for the employer-bank.2. both these writ petitions challenge the award dated 26-8-1991 delivered by the central government industrial tribunal no. 2 at bombay in reference no. cgit-2/40 of 1987 and 36 of 1988. the second reference is covering 15 workmen while the first reference is covering only one workman. by the impugned award, cgit has ordered regularisation of these employees as sub-staff in the employment of bank of india with effect from 30-6-1988. the 16 workmen dissatisfied with this date, have filed writ petition no. 1522 of 1992 contending that the said benefit ought to have been from 11-10-1985. the employer-bank of india has, during the pendency of said reference, granted regularisation from 15-7-1989 or other dates to all these 16 workmen and it has filed writ petition no. 85 of 1992 stating that date 30-6-1988 mentioned above in the award by the tribunal is incorrect and said date ought to have been 15-7-1989 or such other dates. the parties are not disputing the factual background of the matter. the fact that all these 16 workmen put continuous service of 240 days in 12 months prior to the date 11-10-1985 as sought for by the workmen is not in dispute.3. shri deo, advocate for the workmen contends that before the cgit, there are documents which show that workmen who have put in 240 days service are to be regularised if permanent vacancies exist. he states that date 30-6-1988 is awarded by the cgit only in view of minutes of meeting held on 10-2-1988 between the representatives of federation of bank of india staff unions and representatives of management of bank of india. he contends that even stipulation therein does not warrant grant of one date i.e. 30-6-1988 uniformly to all workmen. he states that the process was directed to be completed by that date. he further argues that the workmen have worked in various branches but nature of their work was like leave reserve, sub-staff i.e. badli workmen who used to work in place of permanent sub-staff member who was not available. he contends that insofar as category of clerk and other higher categories in the employment of employer bank are concerned a permanent complement is maintained for this purpose and that complement is styled as leave reserve. he states that whenever a permanent staff member or officer is not available, staff from said leave reserve category is provided to work in his place. he states that no such arrangement was available till 15-7-1989 insofar as workmen are concerned. therefore, the substitutes were dispatched to various branches depending upon the absenteeism there. he states that in bipartite settlement and shastri award, there is no category as badli workmen and if badli workmen are treated as forming part of temporary complement. bipartite settlement confirm permanency upon them after completion of 240 days of service. he relies upon the judgment of this court in the case of anz grindlays bank ltd. v. anz g. bank employees union and anr. reported at 1998 (2) clr 194, to contend that availability of permanent vacancies for absorption of these 16 workmen were available on 11-10-1985 was the burden squarely placed on the shoulders of employer and the employer has failed to discharge the same. he further states that though during pendency of dispute, employer has granted permanency to these 16 workmen from dated 15-7-1989. there is no logic in selecting that date and it is in fact a negation of entitlement of these 16 workmen to claim permanency from 11-10-1985.4. as against this, shri jaiswal, advocate appearing for the employer-bank states that merely because a badli employee has put in 240 days of continuous service, he does not get any right of absorption. he contends that he only gets a right to be considered for absorption whenever permanent vacancies become available. he states that permanent vacancies numbering 258 were available in february, 1988 and at that time there was a meeting held between representatives of federation of bank of india staff unions and representatives of employer bank of india and in that meeting, it was settled that the existing 258 vacancies would be filled in by absorbing badli workmen and said process would be completed on or before 30-6-1988. he states that that does not mean that 16 workmen were entitled to grant of date 30-6-1988. he argues that the employer-bank has considered the situation and as on 15-7-1989, vacancies became available, 16 workmen have been given regularisation from 15-7-1989. he contends that these facts are not considered by the cgit and, therefore, the award needs modification.5. clause 508 of shastri award provides for classification of employees. said clause also describes who can be included in particular clause. the said clause 508 is reproduced below :classification of employees. we direct that employees shall be classified as :-(a) permanent employees :(b) probationers :(c) temporary employees : and(d) part-time employees.these expressions have the following meanings :(a) 'permanent employee' means an employee who has been appointed as such by the bank;(b) 'probationer' means an employee who is provisionally employed to fill a permanent vacancy or post and has not been made permanent; or confirmed in service.(c) 'temporary employee' means an employee who has been appointed for a limited period for work which is of an essentially temporary nature, or who is employed temporarily as an additional employee in connection with a temporary increase in work of a permanent nature;(d) 'part-time employee' means an employee who does not or is not required to work for the full period for which an employee is ordinarily required to work and who is paid on the basis that he is or may be engaged in doing work elsewhere.'thus, it is apparent that the phrase badli/substitute does not appear in classification of employees insofar as employer bank of india is concerned. in such circumstances, if effect is made to fill in these badli/substitute workmen or employees in four categories prescribed by clause 508, it is apparent that it cannot be treated as part-time employees or probationers. the temporary employee has been defined to mean employee who has been appointed for a limited period for work which is of an essentially temporary nature, or who is employed temporarily as an additional employee in connection with a temporary increase in work of a permanent nature. it is clear that a badli or substitute can also not be included as temporary employee. the only category therefore left is of permanent employee and the permanent employee has been defined to mean that an employee who is appointed as such by the bank. as such, temporary employees are concerned by the bipartite settlement vide its clause 20.10. this clause 20.10 states that a temporary workman is to be treated as a confirmed workman irrespective of his qualification if he has already worked for continuous period aggregating 240 working days. therefore, it is clear that these 16 workmen are either to be treated as permanent employees or temporary employees, if they are treated as temporary employees and if they have put in 240 days of service in aggregate before 11-10-1985, they are again entitled to be recognized as confirmed employee.6. in this background, when the impugned award of cgit is perused, the cgit has looked into five documents. the first document is ex. 25 which is letter dated 29-3-1985 by the general manager of bank of india to the zonal managers of bank of india and as per that letter recruiting authorities have been directed to estimate the requirement of badli/subordinate staff in such a way that the empanelled badli workmen could be absorbed in the bank's service in a years time. ex. 28 is a still earlier letter dated 21-11-1983 by the zonal manager to the managers of the bank and by this letter the zonal manager has stated the procedure for absorption of badli workmen. the said procedure states that those badli sub-staff who had worked for 240 days or more badli days in any block of consecutive 12 months and who continue to be engaged by the bank as badli sub-staff even at present, are to be absorbed as sub-staff in the bank's service whether or not they were sponsored by employment exchange. by next document i.e. ex. 29, which is a telex message dated 19-2-1986, zonal manager has cautioned not to use badli sepoys on permanent vacancies for years together and has advised to see that no badli sepoys are employed except in leave vacancies. ex. 30 is again a letter dated 16-6-1987 by the chief manager of bank of india to the managers and the chief manager has stated that engaging persons not sponsored by employment exchange and other than on approved panel is not in order in view of the various problems arising at the time of their absorption in permanent vacancy and also prejudiced the legitimate rights of the staff on badli panel. the managers were advised to discontinue such engagement immediately.7. ex. 20 is a crucial document insofar as present controversy is concerned. this document is minutes of meeting held on 10-2-1988 between the representatives of federation of staff unions and representatives of management of employer. the matter regarding deployment of badli sepoys at various zones appear to have been discussed in that meeting and the understanding reached stated that the procedure for filling up existing 258 center/region/zone wise by absorbing badli sepoys preferably from center wise approved panels of 537 badli sepoys who had completed more than 240 days as on 1-2-1988 in a block of 12 months would be completed by 30-6-1988.8. in view of these documents and the date for completion of procedure mentioned in ex. 20, cgit has given date 30-6-1988 to 16 workmen. the cgit has not said that vacancies became available for absorption of these workmen on 30-6-1988. the cgit has also not recorded a finding that 16 workmen are bound by these minutes in any way. in fact, only because the date is mentioned in the minutes of meeting, it appears to have been accepted by cgit. as is apparent from various documents to which reference is made above, if the vacancies were available when these 16 workmen completed 240 days, they ought to have been absorbed against those vacancies. the stand of employer that it has given permanency/absorption from 15-7-1989 also needs to be scrutinised in this angle.9. the witness for the bank has been cross-examined before the cgit and said witness in relation to minutes of meeting held on 10-2-1988 stated that though the bank agreed to fill in 258 workmen from badli sepoys before 30-6-1988 the share of nagpur zone was not filled in before that date. he could not disclose how many vacancies out of 258 vacancies were in relation to nagpur zone. he further stated that in nagpur city all badli sepoys who completed 248 days work during the period of 12 months were absorbed by 15-7-1989. he could not say whether 16 vacancies were available on 11-10-1985. he has further stated that after 15-7-1989, the bank did not engage any badli sepoy at nagpur till the date of his deposition i.e. 21-6-1990.10. the perusal of judgment on which reliance has been placed by the learned counsel for the workmen i.e. 1998 (2) clr 194, reveals that this court there, was considering the similar issue in relation to the employment with anz grindlays bank limited. para 10 reads as under :'the bank is a multi-national bank but it did not produce any evidence before the tribunal relating to strength of sub-staff in various branches at bombay. the bank was expected to produce the relevant material before the tribunal which could have shown the staffing pattern and strength of sub-staff in various branches at bombay determined by it and the vacancies that fell from time to time. the bank only produced a letter dated 16-4-1993 written by it before the assistant labour commissioner wherein it was stated that the bank has identified 18 vacancies for sub-staff and accordingly invited applications for filling such vacancies which could not be believed because in the award passed by justice tulpule in the year 1985 popularly known as 'tulpule award'. the strength of the staff including sub-staff obtaining on the date of the award was frozen. admittedly at the time tulpule award was given, the bank had sub staff strength of 194 employees in bombay. after 1985, quite a few of employees in sub-staff had retired and in the year 1992 when the dispute arose, admittedly only 124 employees were permanently working in sub-staff cadre. it is also admitted case that from the year 1988 the bank had been employing various persons in sub-staff on temporary basis as temporary employees. according to the union such temporary employees were appointed against the permanent posts but were neither given appointment in accordance with the bipartite settlement nor were paid wages accordingly whereas according to the bank, those temporary employees were employed because of temporary increase in the work load and they were paid wages accordingly. be that as it may, the fact remains that the persons have been employed temporarily regularly in various branches of the bank at bombay from the year 1988 for different periods. this fact is clearly reflected from the documents produced by the bank. exhibit 91-m (pages 331 to 340 of the paper book). the union's witness mr. p. n. subramaniam has referred to the sub-staff strength in the branches of bombay as well as all over the country and the vacancies during the relevant period in details. the said evidence and that is substantially not disputed by the bank, clearly reveals that the sub-staff strength in bombay at the time tulpule award was given was frozen at 194 while the sub-staff strength as on august, 1995 was 124. in the year 1992 the bank did invite applications for filling up the vacancies of the sub-staff and pursuant to the said advertisement, 18 permanent posts in the sub-staff cadre were filled in. apparently, therefore, more than 50 vacancies in sub-staff, still exists. the bank has grown multi-fold after the tulpule award was given in the year 1985. it has also acquired additional space because of increase in deposits and expanding business. the tribunal has considered the evidence led by the parties at great length and from overall discussion made by the tribunal, it is seen that the tribunal was clear that permanent posts in sub-staff were lying vacant and accordingly the concerned employees who were not absorbed and regularised till date were ordered to be regularised. the contention of the bank that there are no permanent posts vacant and, therefore, the concerned employees cannot be directed to be regularised has rightly been disbelieved by the tribunal on overall consideration of the entire available material placed by the parties and the said consideration does not suffer from any infirmity warranting interference by this court in extra-ordinary jurisdiction under article 226 of the constitution of india.' thus, perusal of this para reveals that burden to show that the employer-bank selected date 15-7-1989 or any other date for granting permanency to 16 workmen was on the shoulder of the employer bank. it is to be noted that the documents in this respect and even the knowledge about such vacancies will be necessarily with the employer and the same may not be available to the workmen. in such circumstances, if the bank wanted to justify the date granted by it as date of permanency to 16 workmen, it ought to have produced such material in support of that date. as said material has not been produced, the date 15-7-1989 or other date granted by the bank of india to 16 workmen as the date of their regularisation cannot be accepted and the same is found to be arbitrary. 11. further, as already observed above, when cgit accepted the date as 30-6-1988 as the date of granting permanent regularisation to these 16 workmen, it has also not given any reason therefor. as per minutes of the meeting, the process of regularisation was to be completed by 30-6-1988. therefore, the said process could have been completed on any date prior to 30-6-1988. grant of said date on uniform basis to all workmen is, therefore, erroneous and misconceived.12. there is no dispute that all these 16 workmen had put in 240 days service in aggregate in block of 12 calendar months prior to 11-10-1985. it is the case of 16 workmen that they had been working since 1983 and had put in 240 days even prior to 11-10-1985. as demand in this respect has been raised on 11-10-1985, the workmen have demanded regularisation and permanency from the said date. the evidence discussed above clearly shows that the employer-bank did not demonstrate that on 11-10-1985 there were no vacancies available for absorption of these 16 workmen. on the contrary, the correspondence which is made and referred to above reveals that such vacancies were available. not only this, the very categorisation of these 16 workmen as badli workmen is also being questioned by the learned counsel for the workmen. on the basis of provisions of shastri award, these 16 workmen ought to have been treated as either the permanent workmen or at worst, the temporary workmen by bank. in either case, they get permanency before 11-10-1985. in this background, i find that there was no material before the cgit to deny the claim of 16 workmen for regularisation and permanency from the said date. the said date and claim therefor is a legal right which accrued in favour of these 16 workmen because of completion of 240 days by them. thus, the denial of said date is arbitrary and unsustainable.13. in view of this discussion, writ petition no. 85 of 1992 which questions the date 30-6-1988 granted by the c.g.i.t. to 16 workmen and seeks its alteration to 15-7-1989 or other date cannot be allowed and is liable to be rejected and is accordingly rejected.14. writ petition no. 1522 of 1992 which seeks the date of regularisation as 11-10-1985 needs to be allowed and is accordingly allowed. the award of cgit dated 26-8-1991 is accordingly modified. date 30-6-1988 appearing in para 14 of this award shall be read as 11-10-1985.15. writ petitions are disposed of accordingly. rule is made absolute in above terms in writ petition no. 1522 of 1992. there shall be no order as to costs.
Judgment:

B.P. Dharmadhikari, J.

1. Heard Shri Rohit Deo, Advocate for the workmen and Shri Jaiswal, Advocate for the employer-Bank.

2. Both these writ petitions challenge the award dated 26-8-1991 delivered by the Central Government Industrial Tribunal No. 2 at Bombay in Reference No. CGIT-2/40 of 1987 and 36 of 1988. The second reference is covering 15 workmen while the first reference is covering only one workman. By the impugned award, CGIT has ordered regularisation of these employees as sub-staff in the employment of Bank of India with effect from 30-6-1988. The 16 workmen dissatisfied with this date, have filed Writ Petition No. 1522 of 1992 contending that the said benefit ought to have been from 11-10-1985. The employer-Bank of India has, during the pendency of said reference, granted regularisation from 15-7-1989 or other dates to all these 16 workmen and it has filed Writ Petition No. 85 of 1992 stating that date 30-6-1988 mentioned above in the award by the Tribunal is incorrect and said date ought to have been 15-7-1989 or such other dates. The parties are not disputing the factual background of the matter. The fact that all these 16 workmen put continuous service of 240 days in 12 months prior to the date 11-10-1985 as sought for by the workmen is not in dispute.

3. Shri Deo, Advocate for the workmen contends that before the CGIT, there are documents which show that workmen who have put in 240 days service are to be regularised if permanent vacancies exist. He states that date 30-6-1988 is awarded by the CGIT only in view of Minutes of Meeting held on 10-2-1988 between the representatives of federation of Bank of India Staff Unions and representatives of management of Bank of India. He contends that even stipulation therein does not warrant grant of one date i.e. 30-6-1988 uniformly to all workmen. He states that the process was directed to be completed by that date. He further argues that the workmen have worked in various Branches but nature of their work was like leave reserve, sub-staff i.e. Badli workmen who used to work in place of permanent sub-staff member who was not available. He contends that insofar as category of clerk and other higher categories in the employment of employer Bank are concerned a permanent complement is maintained for this purpose and that complement is styled as leave reserve. He states that whenever a permanent staff member or officer is not available, staff from said leave reserve category is provided to work in his place. He states that no such arrangement was available till 15-7-1989 insofar as workmen are concerned. Therefore, the substitutes were dispatched to various branches depending upon the absenteeism there. He states that in Bipartite Settlement and Shastri Award, there is no category as Badli workmen and if Badli workmen are treated as forming part of temporary complement. Bipartite settlement confirm permanency upon them after completion of 240 days of service. He relies upon the judgment of this Court in the case of ANZ Grindlays Bank Ltd. v. ANZ G. Bank Employees Union and Anr. reported at 1998 (2) CLR 194, to contend that availability of permanent vacancies for absorption of these 16 workmen were available on 11-10-1985 was the burden squarely placed on the shoulders of employer and the employer has failed to discharge the same. He further states that though during pendency of dispute, employer has granted permanency to these 16 workmen from dated 15-7-1989. There is no logic in selecting that date and it is in fact a negation of entitlement of these 16 workmen to claim permanency from 11-10-1985.

4. As against this, Shri Jaiswal, Advocate appearing for the employer-Bank states that merely because a Badli employee has put in 240 days of continuous service, he does not get any right of absorption. He contends that he only gets a right to be considered for absorption whenever permanent vacancies become available. He states that permanent vacancies numbering 258 were available in February, 1988 and at that time there was a meeting held between representatives of federation of Bank of India Staff Unions and representatives of Employer Bank of India and in that meeting, it was settled that the existing 258 vacancies would be filled in by absorbing Badli workmen and said process would be completed on or before 30-6-1988. He states that that does not mean that 16 workmen were entitled to grant of date 30-6-1988. He argues that the employer-Bank has considered the situation and as on 15-7-1989, vacancies became available, 16 workmen have been given regularisation from 15-7-1989. He contends that these facts are not considered by the CGIT and, therefore, the award needs modification.

5. Clause 508 of Shastri Award provides for classification of employees. Said clause also describes who can be included in particular clause. The said clause 508 is reproduced below :

Classification of employees. We direct that employees shall be classified as :-

(a) permanent employees :

(b) probationers :

(c) temporary employees : and

(d) part-time employees.

These expressions have the following meanings :

(a) 'permanent employee' means an employee who has been appointed as such by the Bank;

(b) 'probationer' means an employee who is provisionally employed to fill a permanent vacancy or post and has not been made permanent; or confirmed in service.

(c) 'temporary employee' means an employee who has been appointed for a limited period for work which is of an essentially temporary nature, or who is employed temporarily as an additional employee in connection with a temporary increase in work of a permanent nature;

(d) 'part-time employee' means an employee who does not or is not required to work for the full period for which an employee is ordinarily required to work and who is paid on the basis that he is or may be engaged in doing work elsewhere.'

Thus, it is apparent that the phrase Badli/substitute does not appear in classification of employees insofar as employer Bank of India is concerned. In such circumstances, if effect is made to fill in these badli/substitute workmen or employees in four categories prescribed by Clause 508, it is apparent that it cannot be treated as part-time employees or probationers. The temporary employee has been defined to mean employee who has been appointed for a limited period for work which is of an essentially temporary nature, or who is employed temporarily as an additional employee in connection with a temporary increase in work of a permanent nature. It is clear that a badli or substitute can also not be included as temporary employee. The only category therefore left is of permanent employee and the permanent employee has been defined to mean that an employee who is appointed as such by the Bank. As such, temporary employees are concerned by the Bipartite Settlement vide its clause 20.10. This clause 20.10 states that a temporary workman is to be treated as a confirmed workman irrespective of his qualification if he has already worked for continuous period aggregating 240 working days. Therefore, it is clear that these 16 workmen are either to be treated as permanent employees or temporary employees, if they are treated as temporary employees and if they have put in 240 days of service in aggregate before 11-10-1985, they are again entitled to be recognized as confirmed employee.

6. In this background, when the impugned award of CGIT is perused, the CGIT has looked into five documents. The first document is Ex. 25 which is letter dated 29-3-1985 by the General Manager of Bank of India to the Zonal Managers of Bank of India and as per that letter Recruiting Authorities have been directed to estimate the requirement of badli/subordinate staff in such a way that the empanelled badli workmen could be absorbed in the Bank's service in a years time. Ex. 28 is a still earlier letter dated 21-11-1983 by the Zonal Manager to the Managers of the Bank and by this letter the Zonal Manager has stated the procedure for absorption of badli workmen. The said procedure states that those badli sub-staff who had worked for 240 days or more badli days in any block of consecutive 12 months and who continue to be engaged by the Bank as badli sub-staff even at present, are to be absorbed as sub-staff in the Bank's service whether or not they were sponsored by Employment Exchange. By next document i.e. Ex. 29, which is a telex message dated 19-2-1986, Zonal Manager has cautioned not to use badli sepoys on permanent vacancies for years together and has advised to see that no badli sepoys are employed except in leave vacancies. Ex. 30 is again a letter dated 16-6-1987 by the Chief Manager of Bank of India to the Managers and the Chief Manager has stated that engaging persons not sponsored by Employment Exchange and other than on approved panel is not in order in view of the various problems arising at the time of their absorption in permanent vacancy and also prejudiced the legitimate rights of the staff on badli panel. The managers were advised to discontinue such engagement immediately.

7. Ex. 20 is a crucial document insofar as present controversy is concerned. This document is minutes of meeting held on 10-2-1988 between the representatives of federation of Staff Unions and representatives of management of employer. The matter regarding deployment of badli sepoys at various zones appear to have been discussed in that meeting and the understanding reached stated that the procedure for filling up existing 258 center/region/zone wise by absorbing badli sepoys preferably from center wise approved panels of 537 badli sepoys who had completed more than 240 days as on 1-2-1988 in a block of 12 months would be completed by 30-6-1988.

8. In view of these documents and the date for completion of procedure mentioned in Ex. 20, CGIT has given date 30-6-1988 to 16 workmen. The CGIT has not said that vacancies became available for absorption of these workmen on 30-6-1988. The CGIT has also not recorded a finding that 16 workmen are bound by these minutes in any way. In fact, only because the date is mentioned in the minutes of meeting, it appears to have been accepted by CGIT. As is apparent from various documents to which reference is made above, if the vacancies were available when these 16 workmen completed 240 days, they ought to have been absorbed against those vacancies. The stand of employer that it has given permanency/absorption from 15-7-1989 also needs to be scrutinised in this angle.

9. The witness for the Bank has been cross-examined before the CGIT and said witness in relation to minutes of meeting held on 10-2-1988 stated that though the Bank agreed to fill in 258 workmen from Badli Sepoys before 30-6-1988 the share of Nagpur zone was not filled in before that date. He could not disclose how many vacancies out of 258 vacancies were in relation to Nagpur zone. He further stated that in Nagpur City all Badli Sepoys who completed 248 days work during the period of 12 months were absorbed by 15-7-1989. He could not say whether 16 vacancies were available on 11-10-1985. He has further stated that after 15-7-1989, the Bank did not engage any Badli sepoy at Nagpur till the date of his deposition i.e. 21-6-1990.

10. The perusal of judgment on which reliance has been placed by the learned counsel for the workmen i.e. 1998 (2) CLR 194, reveals that this Court there, was considering the similar issue in relation to the employment with ANZ Grindlays Bank Limited. Para 10 reads as under :

'The Bank is a multi-national Bank but it did not produce any evidence before the Tribunal relating to strength of sub-staff in various branches at Bombay. The Bank was expected to produce the relevant material before the Tribunal which could have shown the staffing pattern and strength of sub-staff in various branches at Bombay determined by it and the vacancies that fell from time to time. The Bank only produced a letter dated 16-4-1993 written by it before the Assistant Labour Commissioner wherein it was stated that the Bank has identified 18 vacancies for sub-staff and accordingly invited applications for filling such vacancies which could not be believed because in the award passed by Justice Tulpule in the year 1985 popularly known as 'Tulpule Award'. The strength of the staff including sub-staff obtaining on the date of the award was frozen. Admittedly at the time Tulpule award was given, the Bank had sub staff strength of 194 employees in Bombay. After 1985, quite a few of employees in sub-staff had retired and in the year 1992 when the dispute arose, admittedly only 124 employees were permanently working in sub-staff cadre. It is also admitted case that from the year 1988 the Bank had been employing various persons in sub-staff on temporary basis as temporary employees. According to the Union such temporary employees were appointed against the permanent posts but were neither given appointment in accordance with the bipartite settlement nor were paid wages accordingly whereas according to the Bank, those temporary employees were employed because of temporary increase in the work load and they were paid wages accordingly. Be that as it may, the fact remains that the persons have been employed temporarily regularly in various branches of the Bank at Bombay from the year 1988 for different periods. This fact is clearly reflected from the documents produced by the Bank. Exhibit 91-M (Pages 331 to 340 of the paper book). The Union's witness Mr. P. N. Subramaniam has referred to the sub-staff strength in the branches of Bombay as well as all over the country and the vacancies during the relevant period in details. The said evidence and that is substantially not disputed by the Bank, clearly reveals that the sub-staff strength in Bombay at the time Tulpule Award was given was frozen at 194 while the sub-staff strength as on August, 1995 was 124. In the year 1992 the Bank did invite applications for filling up the vacancies of the sub-staff and pursuant to the said advertisement, 18 permanent posts in the sub-staff cadre were filled in. Apparently, therefore, more than 50 vacancies in sub-staff, still exists. The Bank has grown multi-fold after the Tulpule Award was given in the year 1985. It has also acquired additional space because of increase in deposits and expanding business. The Tribunal has considered the evidence led by the parties at great length and from overall discussion made by the Tribunal, it is seen that the Tribunal was clear that permanent posts in Sub-staff were lying vacant and accordingly the concerned employees who were not absorbed and regularised till date were ordered to be regularised. The contention of the Bank that there are no permanent posts vacant and, therefore, the concerned employees cannot be directed to be regularised has rightly been disbelieved by the Tribunal on overall consideration of the entire available material placed by the parties and the said consideration does not suffer from any infirmity warranting interference by this Court in extra-ordinary jurisdiction under Article 226 of the Constitution of India.'

Thus, perusal of this para reveals that burden to show that the employer-Bank selected date 15-7-1989 or any other date for granting permanency to 16 workmen was on the shoulder of the employer Bank. It is to be noted that the documents in this respect and even the knowledge about such vacancies will be necessarily with the employer and the same may not be available to the workmen. In such circumstances, if the Bank wanted to justify the date granted by it as date of permanency to 16 workmen, it ought to have produced such material in support of that date. As said material has not been produced, the date 15-7-1989 or other date granted by the Bank of India to 16 workmen as the date of their regularisation cannot be accepted and the same is found to be arbitrary.

11. Further, as already observed above, when CGIT accepted the date as 30-6-1988 as the date of granting permanent regularisation to these 16 workmen, it has also not given any reason therefor. As per minutes of the meeting, the process of regularisation was to be completed by 30-6-1988. Therefore, the said process could have been completed on any date prior to 30-6-1988. Grant of said date on uniform basis to all workmen is, therefore, erroneous and misconceived.

12. There is no dispute that all these 16 workmen had put in 240 days service in aggregate in block of 12 calendar months prior to 11-10-1985. It is the case of 16 workmen that they had been working since 1983 and had put in 240 days even prior to 11-10-1985. As demand in this respect has been raised on 11-10-1985, the workmen have demanded regularisation and permanency from the said date. The evidence discussed above clearly shows that the employer-Bank did not demonstrate that on 11-10-1985 there were no vacancies available for absorption of these 16 workmen. On the contrary, the correspondence which is made and referred to above reveals that such vacancies were available. Not only this, the very categorisation of these 16 workmen as Badli workmen is also being questioned by the learned counsel for the workmen. On the basis of provisions of Shastri Award, these 16 workmen ought to have been treated as either the permanent workmen or at worst, the temporary workmen by Bank. In either case, they get permanency before 11-10-1985. In this background, I find that there was no material before the CGIT to deny the claim of 16 workmen for regularisation and permanency from the said date. The said date and claim therefor is a legal right which accrued in favour of these 16 workmen because of completion of 240 days by them. Thus, the denial of said date is arbitrary and unsustainable.

13. In view of this discussion, Writ Petition No. 85 of 1992 which questions the date 30-6-1988 granted by the C.G.I.T. to 16 workmen and seeks its alteration to 15-7-1989 or other date cannot be allowed and is liable to be rejected and is accordingly rejected.

14. Writ Petition No. 1522 of 1992 which seeks the date of regularisation as 11-10-1985 needs to be allowed and is accordingly allowed. The award of CGIT dated 26-8-1991 is accordingly modified. Date 30-6-1988 appearing in para 14 of this award shall be read as 11-10-1985.

15. Writ Petitions are disposed of accordingly. Rule is made absolute in above terms in Writ Petition No. 1522 of 1992. There shall be no order as to costs.