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CASE NO.: Appeal (civil)  8036-8037 of 2004

PETITIONER: Bank of India & Anr

RESPONDENT: Tarun Kr. Biswan & Ors

DATE OF JUDGMENT: 30/07/2007

BENCH: Dr. ARIJIT PASAYAT & LOKESHWAR SINGH PANTA

JUDGMENT: J U D G M E N T  

Dr. ARIJIT PASAYAT, J.

1.      Challenge in these appeals is to the judgment of a  Division Bench of the Calcutta High Court dismissing the  Letters Patent Appeal filed by the appellant Bank and its  functionaries.  

2.      Background facts in a nutshell are as follows:         In the year 1986 a panel for appointment of Budlee  Sepoys was prepared by the appellant-Bank for engagement  on temporary basis (strictly on ’no work no pay’) in the leave  vacancies and to absorb them in the Bank as and when  regular vacancies arise. The scheme for  deployment/absorption was formulated on 24.2.1988 for  Budlee sepoys who appear on center-wise approved panels  and who had completed 240 Budlee working days of service as  on 1.2.1988 in a block of 12 months or a calendar year.  It  was stipulated in the scheme that on absorption Budlee  Sepoys would be continued on the approved panels and would  be deployed on leave vacancy on need basis only and would be  absorbed in permanent vacancies that may arise in future.            

3.      The aforesaid scheme clearly stated that  absorption/regularization of Budlee Sepoys would be subject  to two conditions: (1) completion of 240 days in a block year of  12 months or a calendar year: (2) availability of vacancies  arising in future.      

4.      Respondents who are Budlee workers were engaged on a  temporary basis.  Letter of engagement to the respondents  clearly spells out that their employment was that of seasonal  requirement of the appellant-Bank and it was only for a  specific period of time on the expiry of which their services will  stand terminated.  The relevant stipulations read as follows:

"2(i) to fill up immediately the existing clear,  unfilled vacancies at Regions/Zones by  absorbing Budlee Sepoys preferably from the  centre-wise approved panels of Budlee Sepoys  who have completed more than 240 working  budlee days as on 1st February, 1988 in a  block of 12 months or a calendar year.  In  regard to such unfilled vacancies if the  required number of Budlee Sepoys, who have

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completed more than 240 budlee days as on  1st February, 1988 in a block of 12 months or  a calendar year is not available on approved  panel/s such vacancies should be filled in by a  board Budlee Sepoys from the respective  approved centre-wise panels, who have not  completed 240 budlee working days in a block  of 12 months of in a calendar year.  This  process of absorption has to be completed by  you before 30th June, 1988 after obtaining  Head Office approval well in time by sending  your specific repeat specific approval giving the  details of immediately unfilled centre-wise  vacancies.           

xx              xx              xx              xx

(iii)   Those of the Budlee Sepoys on approved  panel, who have not completed 240 days of  budlee days’ service in a block of 12 months or  a calendar year as on 1st February, 1988, are  to be continued on the panel/s and to be  engaged on need basis in leave vacancies only  that may arise from time to time at branches  where no Budlee Sepoys who have completed  240 days are available on panels.  Their case  for absorption in permanent services of Bank  may be considered in permanent vacancies  that may arise in subsequent years."    

5.      Writ petitions were filed by the respondents praying for  issuance of writ in the nature of mandamus directing the  Bank to regularize service of the respondents as subordinate  staff in the Bank.  It was stated that their names were  sponsored by the employment exchange for interview for the  recruitment of subordinate staffs. Panel was prepared  including the names of writ petitioners and out of panel, 43  were appointed as staff in different branches of the Bank and  14 persons who had filed writ petition were left out. On  different dates between 2nd March, 1986 to 30th June, 1986  writ petitioners were temporarily appointed as subordinate  staff along with other candidates.  On 5th December, 1991, the  Bank asked the writ petitioners to exercise option for post of  subordinate staff in non-CCA areas in West Bengal and the  writ petitioners exercised their option to such posts.  But no  appointment was given.  Stand in the writ petition was that  though they had served for more than 240 days in a block of  12 months on several occasions they have been absorbed in  the existing vacancies permanently.  It was also pleaded that  they were performing the duties which were done by regular  subordinate staff of the Bank and the same are all   permanent, regular and continuous nature of job relating to  day to day business of the Bank.  The Bank of India  Employees’ Association in the year 1994 raised an industrial  dispute for regularization of the employees and staff who have  completed 240 days service in a block of 12 calendar months  in the office of Assistant Labour Commissioner (Central),  Calcutta.  The said dispute was ultimately concluded through  settlement on 23rd September, 1997, whereunder Bank agreed  to regularize service of empanelled sub-staff who have  completed 240 days in any block of 12 months. But ultimately  three of the persons were regularized in 1997 but  the rest  were not regularized and they continued to work on daily rate  basis.  

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       Bank’s stand was that the writ petitioners are being used  as Budlee workers and could not be absorbed having not  completed 240 days in a block year.   

6.      Learned Single Judge held that the Bank had already  formulated a scheme for absorption of employees in terms of  the decision of this Court in State of Haryana and Ors. v. Piara  Singh and Ors.  (AIR 1992 SC 2130).  Learned Single Judge  held that majority of the writ petitioners worked for more than  240 days in the year or a block of 12 calendar months.  It was  also noted that vacancies did exist as on 6.1.1999.  Learned  Single Judge also took into consideration the fact that the writ  petitioners on being asked by Bank exercised their option for  the engagement in non-CCA in West Bengal were not given  employment.  Learned Single Judge directed relaxation from  the norm of 240 days if the shortfall was marginal. Following  direction was given:- "The question of working for 240 days in a year  or in a block of 12 calendar months may be  relaxed if the shortfall is marginal. If it is found  that in the total period of engagement if any  one of these petitioners had worked for 210  days in a year or in a block of 12 calendar  months he may be considered for such  absorption. His case will be considered  according to fulfillment of the criteria by  preparing a list viz. that the persons who had  completed 240 days in any of the years or a  block of 12 calendar months since 1986 first  they shall be placed at the top and all such  persons may be serially placed and the  persons who had at least 210 days of work in  any of the years since 1986 shall also be  placed similarly and the persons who  completed 240 days of work in any particular  year since 1986 till date shall be given  preference in accordance with the list so  prepared within the time framed mentioned  above.

       With above observations, this writ  petition is disposed of."

Bank challenged the judgment of the learned Single  Judge, firstly, on the ground that court changed the scheme  for regularization or absorption for the casual workers by even  directing the Bank to consider those who have not completed  240 days in a particular year but at least completed 210 days  of work, and they shall be considered for absorption and  regularization.  It was also contended even though there may  be vacancies such vacancies may  not be filled up  with a view  to make the Bank more efficient as well as for controlling  operation cost and to improve the prospects of career growth  and skills upgradation for employees by rationalizing the  manpower and to help the Bank to right size of the growth.  It  was pointed out that Board of Directors in its meeting held on  28th October, 2000, had approved the Voluntary Retirement  Scheme for the employees of the Bank under "Bank of India  Voluntary Retirement Scheme, 2000".  As a matter of fact,  after the implementation of the said scheme, still 900 sub-staff  members are in excess of the strength.  It was further stated  that none of the writ petitioners had  completed 240 days work  in a year and therefore cannot be absorbed under the scheme.   Further, in terms of the directions given, an  affidavit was filed

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stating that no writ petitioner had completed 240 days in a  year giving details thereof.  Response of the writ petitioners  was that   each of them completed 240 days of work.  It was   stated that while making calculations the Bank excluded  Sundays and holidays for the purpose of calculations.   

7.      The Division Bench held that there was no logic for  excluding the Sundays and public holidays. The Division  Bench, however, observed that learned Single Judge was not  justified in directing that those who had worked for 210 days  could be considered for absorption.  It did not accept the stand  that there was factual dispute about the number of days.   Relying on the decision of this Court in Workmen of American  Express International Banking Corporation v. Management of  American Express International Banking Corporation (AIR  1986 SC 458) it was held Sundays and public holidays are  also to be reckoned.  The High Court did not find it necessary  to consider the effect of the Voluntary Retirement Scheme,  2000.  It was held that appellants shall proceed on the basis  that each of the writ petitioners had completed 240 days in the   block of 12 calendar months.    8.      Learned counsel for the appellant-Bank submitted that  in the letter of engagement in each case it was clearly  stipulated that the employment was for the seasonal  requirement and it was only for a specified period of time on  the expiry of which their services would stand terminated.   The respondents in the representation made before the  Assistant Labour Commissioner (dated 16.2.2000) had  accepted that the appellant did not allow the workmen to work  for 240 days in a block of 12 calendar months and thus they  had not completed 240 days of service.                                                                  

9.      In the writ petition also in paras 13 and 39  it was clearly  admitted that they have not completed the required 240 days  of service. In the light of this, prayer for  regularization was  clearly unacceptable. Without prejudice to the fact that they  had not completed 240 days  being  a model employer, Bank  had  asked the writ petitioners to exercise their option for  some future vacancies which were likely to occur in non-CCA  areas outside the Calcutta Metropolitan Area in West Bengal.   The respondents failed to exercise their option for the said  areas and never expressed willingness to join any non-CCA  Bank. The said exercise of option was not binding on the Bank  and the letter of option did not mean any commitment or  assurance for appointment.  The Bank has surplus staff even  after implementation of the Voluntary Retirement Scheme,  2000 which was essentially meant for downsizing excess  power of the Bank.  After acceptance of the VRS options 900  subordinate staff were in excess including the Banks’   Kolkatta Zone.  There was no permanent vacancy of  sub-staff  in the Bank. It was pointed out that position in American  Express’s case (supra) was factually different. It related to  employment of typists in temporary capacities with a number  of short breaks, till a specified period of time when their  services stood terminated. There was dispute as to whether  Sundays and other holidays for which wages were paid under  the law of contract and Statute could be treated as days on  which employee "actually worked under the employer" for the  purpose of Section 25-F read with Section 25-B of the  Industrial Disputes Act, 1947 (in short the ’Act’).  It is  submitted that the facts involved in the present case  are  entirely different as they have not admittedly completed 240  days in a calendar year as required by the scheme for their

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deployment/absorption against permanent vacancies.  It was  pointed out that no weekly off is given to Budlee worker if he  works only for 6 days.  It is only when the engagement of  budlee Sepoy is more than 6 days at a stretch then weekly off  is given after 6 days of work.  It was also submitted that in  view of what has been stated in Secretary, State of Karnataka  and Ors. v. Uma Devi (3) and Ors. (2006 (4) SCC 1) question of  regularization does not arise because there was no enforceable  legal right.                       

10.     In response, learned counsel for the respondents  submitted that the High Court had given finding of fact that  the writ petitioners have completed 240 days of work.  It was  also submitted that in view of what has been stated in  American Express’s case (supra) the inevitable conclusion is  that each of the writ petitioners had completed 240 days.  

11.     It is to be noted that the onus is on the employee to  establish that he had worked for more than 240 days.  The  High Court is not right in holding without factual aspect  having been established by the respondents that each of them   had worked for more than 240 days.  The effect of decision not  to fill up the vacancy was also not  considered. The effect of  change of policy has been considered by this Court in Ram  Prakash Makkar v. State of Haryana and Ors. (1992 (4) SCC  727).  Unfortunately, the High Court did not consider the  effect thereof. As noted above, the writ petitioners have  accepted that they have not completed 240 days of work. Their  stand was that the management did not permit them to do so.   The scheme to which both the appellant and the respondents  have referred to in para 2(1) speaks for 240 days of work in  Budlee Service. Similar is the position in para 2 as quoted  above.  The scheme of budlee days is different. It denotes  actual working days. American Express’s case (supra)  has no  application as the nature of work is different.  Additionally,    dispute is about as to whether the respondents had completed  240 budlee days.                               

12.     There is distinction between temporary worker and  budlee  worker.  The present case relates to entitlement under  the settlement and the scheme.  That being the position, the  High Court’s order is clearly unsustainable and is set aside.   Needless to say that whenever the respondents complete 240  days budlee work in a year or block of 12 months, their cases  shall be considered in the light of the scheme, subject to  continuance of the scheme, and change in policy if any.          

13.     Appeals are allowed without any order as to costs.