Dismissed

Bank of Baroda v. Sobha K.

Kerala HC20 Feb 2018WA/383/2018

Case brief

AI extract

What is this about?

The Division Bench dismissed the writ appeal against a single Judge order that directed Bank of Baroda to regularize a sweeper-cum-peon. The Court held that where the employer's default precluded timely absorption under a settlement scheme, the employee was entitled to regularization with retrospective effect from the settlement period.

What did the court decide?

Appeal dismissed; order dated 14-12-2017 in W.P.(C) 30610 of 2016 remains valid, directing Bank of Baroda to regularize the petitioner.

Bank of Baroda Vs Sobha K. — Pension and Retirement Benefits | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN

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THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 20TH DAY OF FEBRUARY 2018 / 1ST PHALGUNA, 1939

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WA.No. 383 of 2018 IN WPC. 30610/2016

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AGAINST THE ORDER/JUDGMENT IN WP(C) 30610/2016 of HIGH COURT OF KERALA DATED 14-12-2017

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APPELLANT(S)/RESPONDENTS

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1 BANK OF BARODA, REPRESENTED BY ITS MANAGING DIRECTOR, SURAJ PLAZA-I, SAYAJI VADODRA - 390021.

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2 GENERAL MANAGER,

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HR AND MARKETING , BARODA CORPORATE CENTRE C-26,

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G-BLOCK, BANDRA KURLA COMPLEX, MUMBAI- 51.

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3 REGIONAL MANAGER,

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BANK OF BARODA, REGIONAL OFFICE, VASUDEVA BUILDING. T.D,

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ROAD, ERNAKULAM, KOCHI- 682011.

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BY ADVS.SRI.ADARSH KUMAR SRI.K.M.ANEESH

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SRI.BIJU VARGHESE ABRAHAM

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SRI.DILEEP CHANDRAN

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RESPONDENT(S)/PETITIONER :

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SOBHA K.,

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W/O JAYAPRAKASH, AGED 37 YEARS. GOURI SHANKARAM, KIZHAKKANCHERRY, PALAKKAD - 678 684.

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R BY SRI.SIVAN MADATHIL

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20-02-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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KAV/

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P.N.RAVINDRAN & R.NARAYANA PISHARADI, JJ.

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W.A.No.383 of 2018

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Dated this the 20^th day of February, 2018

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JUDGMENT

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P.N.Ravindran, J.

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The appellants are the respondents in W.P.(C)No.30610 of 2016 on the files of this court. The sole respondent in this appeal is the petitioner therein. By judgment delivered on 14.12.2017, a learned single Judge of this court allowed the writ petition and directed the appellants to issue orders absorbing the writ petitioner in terms of Ext.P1 settlement from 2009-2010, within a period of three months from the date of receipt of a copy of the judgment. The learned single Judge has also observed that bearing in mind the fact that the writ petitioner is a low paid employee, the appellants shall consider her request for a posting near her home town namely, Wadakkencherry in Palakkad District. The appellants have, aggrieved thereby, filed this writ appeal. The brief facts of the case are as follows:

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The writ petitioner was appointed as Sweeper-cum-Peon on a casual basis in the Wadakkencherry Branch of Bank of Baroda pursuant to a selection made in the year 2001. While she was thus working, the management of Bank of Baroda entered into Ext.P1 settlement with All India Bank of Baroda Employees' Federation (a

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W.A.No.383 of 2018

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recognised trade union) regarding absorption of casual/temporary Peons and Sweepers. In Clause 2 of Ext.P1 settlement it was provided as follows:

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“ 2. Subject to Clause 3, Casual/temporary Peons/Sweepers shall be absorbed in Bank's service in phased manner as under: Phase-I:

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The following category of casual/temporary Peons/Sweepers will be absorbed in Phase-I before 30^th June, 2008.

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a) Casual/temporary Peons/Sweepers who had worked for 90 or more days between 01.01.1982 and 31.12.1989 and are still working.

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b) Casual/temporary Peons/Sweepers who had worked for 90 or more days between 01.01.1990 and 31.12.1990 and are still working.

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Phase-II:

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Casual/temporary Peons/Sweepers who have worked for 240 days or more in consecutive -12- months between 01.01.1991 and 29.02.1996 and are still working will be absorbed in Phase-II during the financial year 2008-09. Phase-III:

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Casual/temporary Peons/Sweepers who have worked for 240 days or more in consecutive -12- months between 01.03.1996 and 28.07.2007 and are still working will be absorbed in Phase-III during the financial year 2009-10. ”

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On the terms of Clause 2 of Ext.P1 settlement, casual/ temporary Peons/Sweepers had to be absorbed in the bank's service in a phased manner; the first Phase to be completed before 30.6.2008, the second Phase to be completed during the financial year 2008-2009 and the third Phase to be completed during the financial year 2009-2010. The conditions subject to which casual/temporary Peons/Sweepers will be absorbed, are set out in Clause 3. In Clause 4 it is inter alia stipulated that all casual/temporary Peons/Sweepers

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who are covered under the settlement for absorption shall submit individual undertaking as per Annexure A to the settlement, agreeing to the terms and conditions stipulated in Clause 3 before consideration of their request for absorption. It was also stipulated that any conditional undertaking or undertaking in any other format and/or refusal to the order of placement/deployment shall be deemed as refusal to absorption by the concerned casual/temporary employee and in such an event, their claim for absorption shall not be considered thereafter. The appellants did not for reasons best known to them take steps to absorb the writ petitioner in service notwithstanding the fact that she was an employee eligible for such absorption. Instead, they appointed a regular hand as Sweeper-cumPeon in the Wadakkencherry Branch and consequently terminated her services on 12.1.2015. She thereupon filed W.P.(C)No.1414 of 2015 in this court seeking absorption and regularisation in service.

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After considering the rival contentions, a learned single Judge of this court held, relying on Ext.P3 letter dated 29.3.2003 sent by the Assistant General Manager to the Chief Manager and Ext.P9 letter dated 25.4.2003 sent by the Branch Manager, Bank of Baroda, Wadakkencherry Branch, to the Assistant General Manager, that the writ petitioner who had been engaged to work for 249 days in 20012002 (190 days in 2001 and 59 days in 2002) is eligible to be

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absorbed in terms of Ext.P1 memorandum of settlement, meaning thereby that she was entitled to be absorbed in Phase-III during the financial year 2009-2010. The learned single Judge accordingly disposed of W.P.(C)No.1414 of 2015 by Ext.P2 judgment delivered on 5.6.2015 with the following directions:

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“ In that view of the matter, this writ petition is

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disposed with the following directions:

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1. The petitioner is entitled for absorption in regular service.

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2. The petitioner shall be regularised in the post of sweeper within a period of three months.

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3. The petitioner shall be suitably placed in any of the branches near to Vadakkencherry.

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4. If there are no vacancies, the petitioner shall be absorbed as a super numerary and shall be paid salary payable to the sweeper after three months. ”

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The appellants challenged Ext.P2 judgment in W.P.(C)No.1414

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of 2015 by filing W.A.No.1987 of 2015. By Ext.P3 judgment delivered on 8.12.2015, a Division Bench of this court dismissed the appeal. The appellants carried the matter in appeal to the Apex Court by filing S.L.P.(C)No.2760 of 2016. By order passed on 5.2.2016, the Apex Court dismissed the special leave petition, leaving open the question of law raised therein. The Apex Court also observed that the order passed by the Apex Court may not be treated as a precedent.

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The appellants did not even thereafter regularise the writ petitioner in service. She thereupon filed C.O.C.No.1314 of 2016 in this court. While that contempt case was pending, the appellants

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issued Ext.P4 proceedings dated 2.3.2016 absorbing the writ petitioner as Sweeper-cum-Peon in the Subordinate Staff Cadre on probation. The contempt case was thereupon closed by Ext.P6 judgment delivered on 27.5.2016, reserving liberty with the writ petitioner to challenge the terms and conditions of the absorption. By the said proceedings, she was appointed as Sweeper-cum-Peon in Cherpulassery Branch. The writ petitioner thereupon joined service and thereafter submitted Ext.P5 representation dated 11.3.2016 seeking regularisation with effect from the financial year 2010, disbursement of salary from 5.9.2015 and posting in a branch near Wadakkencherry. This was followed by yet another representation addressed to the Regional Manager, a copy of which is on record as Ext.P8. She thereafter filed W.P.(C)No.30610 of 2016 in this court claiming regularisation in service with effect from the financial year 2009-2010. She contended that on the terms of Ext.P1 settlement and Ext.P2 judgment, she was entitled to be regularised in service during the financial year 2009-2010 with all consequential benefits.

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The appellants resisted the writ petition by filing a counter affidavit. They contended that the settlement contemplates only absorption on a prospective basis and therefore the writ petitioner cannot seek regularisation from an anterior date. The writ petitioner filed a reply affidavit reiterating her contentions in the writ petition

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and further contending that the absorption with effect from a future date is contrary to the findings entered by the learned single Judge in Ext.P2 judgment. She also relied on Clause 6 of Ext.P1 settlement in which it is stipulated that both parties shall submit implementation report within 30 days of the phase wise time limit stipulated in Clause 2 of the settlement, with objection thereto if any, failing which it will be construed that the terms of the settlement have been fully implemented. She contended that the bank ought to have completed the regularisation process within 30 days from the expiry of the financial year 2009-2010 by absorbing all persons eligible for absorption.

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The learned single Judge considered the rival contentions and held relying on Ext.P2 judgment that when absorption is provided in the settlement and similarly situated persons have already been absorbed within the time limit prescribed in the settlement, there is no reason to deny that benefit to the writ petitioner. The learned single Judge accordingly directed regularisation of the writ petitioner in service during the financial year 2009-2010 in terms of the stipulations contained in Clause 2 of Ext.P1 settlement. The appellants have, aggrieved thereby, filed this writ appeal.

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We heard Sri.Adarsh Kumar, learned counsel appearing for the appellants and Sri.Sivan Madathil, learned counsel appearing for

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the respondent. Learned counsel appearing for the appellants raised various contentions including the contention that the writ petitioner had not submitted an undertaking as contemplated in Clause 4 of Ext.P1 settlement and therefore the learned single Judge erred in directing that the writ petitioner should be absorbed in service with effect from the financial year 2009-2010. Inviting our attention to Clause 3(c) of Ext.P1, learned counsel contended that absorption contemplated in the settlement is only with prospective effect i.e., from the date mentioned in the letter of absorption issued by the competent authority and therefore, the impugned judgment is liable to be set aside. Referring to Clause 3 of Ext.P1 settlement learned counsel for the appellants contended that the seniority of casual/ temporary Sweeper-cum-Peon on absorption will be reckoned only from the date of absorption of the employee in service and therefore the learned single Judge erred in directing that the writ petitioner be absorbed in service with effect from the year 2009-2010.

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Per contra, learned counsel appearing for the respondent contended that on the terms of Ext.P1 settlement the appellants were bound to complete the absorption in Phase-III, within 30 days from the date of expiry of the financial year 2009-2010, by absorbing all persons eligible for absorption, that they ought to have circulated Ext.P1 settlement among the employees eligible for absorption and

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called for undertakings in the prescribed form, but without informing the writ petitioner that she is entitled for absorption, they recruited and appointed a regular hand and terminated her services on 12.1.2015. Learned counsel contended that it was thereafter that the writ petitioner moved this court by filing W.P.(C)No.1414 of 2015 seeking redressal of her grievances. Inviting our attention to Ext.P2 judgment, more particularly paragraph 8 thereof, learned counsel for the respondent contended that this court has in categorical terms held that the writ petitioner is entitled for absorption in terms of the memorandum of settlement, that Ext.P2 judgment has attained finality and therefore the appellants cannot now contend that the regularisation contemplated and granted by this court in Ext.P2 judgment is prospective and not retrospective with effect from the financial year 2009-2010. Learned counsel for the writ petitioner contended that in the light of the finding entered by the learned single Judge in Ext.P2 judgment that the writ petitioner is entitled to regularisation in terms of Ext.P1 settlement, no exception can be taken to the impugned judgment.

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We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. The appellants cannot in our opinion dispute the entitlement of the writ petitioner for

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regularisation in view of the specific finding entered by a learned single Judge of this court in Ext.P2 judgment which has attained finality. The learned single Judge has in Ext.P2 judgment held, relying on Exts.P3 and P9 produced and marked in W.P.(C)No.1414 of 2015 (correspondence between officers of the bank) that the writ petitioner is entitled to regularisation in terms of Ext.P1 settlement. It has also been found in Ext.P2 judgment that the writ petitioner is entitled to be absorbed and regularised in the third Phase. The period specified in Ext.P1 settlement for completion of the process of regularisation and absorption in the third Phase is during the financial year 2009-2010. On the terms of Clause 6 of Ext.P1 settlement the appellants were bound to submit an implementation report within 30 days from the expiry of the financial year 2009-2010 with objections thereto, if any failing which it will be construed that the terms of the settlement have been fully implemented.

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It is evident from Ext.P1 settlement that the process of absorption had to be completed before the expiry of the financial year 2009-2010 as far as the third Phase is concerned. In respect of Phases I and II, the process had to be completed even earlier. For no fault of hers, the writ petitioner was denied the benefit of absorption. It was only when this court intervened that she was able to enjoy the benefit of Ext.P1 settlement notwithstanding the fact that she was eligible for

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absorption. Such being the situation, as the writ petitioner was denied the benefit of absorption for no fault of hers, the learned single Judge was in our opinion perfectly justified in holding that the absorption has to be made during the financial year 2009-2010 and not with effect from a prospective date. In our opinion, the stipulation in Clause 3(c) of Ext.P1 settlement that the absorption shall be with prospective effect can only mean prospective from the date of the order which ought to have been passed. The appellants cannot in our opinion take advantage of the delay on their part and the default committed by them, to contend that the employee concerned should suffer.

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As stated by the learned single Judge in Ext.P2 judgment as also in the impugned judgment, the writ petitioner is a low paid employee who had worked for about 14 years as Sweeper. Though an attempt was made by learned counsel for the appellants to contend that Ext.P3 judgment confirming Ext.P2 judgment happened to be passed by drawing an adverse inference, we are of the opinion that the said contention is plainly untenable. Merely for the reason that an adverse inference was drawn against the appellants it does not ipso facto follow that the inference cannot be relied on to hold that the writ petitioner was eligible to be regularised in service. The appellants who suffered an adverse judgment which has become final, cannot in our opinion be heard to contend that since an adverse inference was

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drawn, the judgment has no efficacy. An adverse inference was drawn on account of the default of the appellants and not on account of the default of the writ petitioner. It was the appellants who had pleaded that the writ petitioner had not worked for 240 days in an year. The burden was on them to show that she had not worked for 240 days in an year. Despite grant of adequate opportunity, the appellants did not do so. It was on account of that reason that in Ext.P2 judgment as well as in Ext.P3 judgment this court relied on Exts.P3 and P9 letters produced and marked in W.P.(C)No.1414 of 2015, which virtually conceded the claim of the writ petitioner for regularisation. In such circumstances, we are of the opinion that no interference is called for with the impugned judgment.

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It is evident from the conduct of the appellants that they were not ready and willing to extend the benefit of Ext.P1 settlement to a low paid employee who was working as Sweeper in the Wadakkencherry branch of Bank of Baroda. Notwithstanding the swanky interiors in modern buildings, without the services of a casual/ permanent employees to do the cleaning works, the bank cannot keep its premises neat and tidy. The services of a Sweeper in a bank which is frequented by its customers in large numbers everyday, cannot be said to be unnecessary. It is having regard to the need and necessity to appoint Sweepers on a regular basis that the management of the

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bank entered into Ext.P1 settlement with the trade union representing such workers to absorb and regularise casual/temporary Peons/ Sweepers. The writ petitioner has been held to be an employee who was entitled to the benefit of regularisation in terms of Ext.P1 settlement. That finding which has attained finality cannot be nullified by contending that such absorption will be from a date which is prospective. The appellants, who illegally denied the benefit of absorption to the writ petitioner in time, cannot in our opinion take advantage of their own wrong and contend that the writ petitioner cannot be regularised in service from an anterior date. Their contentions in that regard were in our opinion rightly repelled by the learned single Judge.

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For the reasons stated above, we hold that there is no merit in the instant appeal. The writ appeal fails and is accordingly dismissed.

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P.N.RAVINDRAN JUDGE

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R.NARAYANA PISHARADI JUDGE

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vpv

Bank of Baroda v. Sobha K.

Case brief

What is this about?

What did the court decide?

Bank of Baroda v. Sobha K.

Case brief

What is this about?

What did the court decide?

What the court decided

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