IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6233 of 2000 STATE BANK OF BIKANER & JAIPUR Versus THE UNION OF INDIA & ORS ----------- 4. 19.1.2009 Heard. The only question which has been canvassed by the counsel appearing on behalf of the State Bank of Bikaner and Jaipur (hereinafter referred to as the „Bank‟) is that the Industrial Tribunal while passing the award has failed to take into consideration the circulars, as contained in Annexure 4 series, pertaining to settlement of Management with the recognized union for regularization of temporary workers on the post of messenger. In this context this Court would find that the reference which was made was not for regularizing the services of the respondent workman exclusively on the post of messenger, rather the reference under Section 10 of I.D. Act was very broad, namely:- “Whether the action of the Management in not regularizing Sh. Md. Salim Ansari to full time job in the full time scale is legal and justified? If not to what relief 2 the workman is entitled to" In relation to this grievance the workman had relied on “Annexures A series” which is again the circular of the Bank and shows as to what is the entitlement of a Sweeper/ Farrash in case of his working for specified hours and covering the area of cleaning. The finding of the Tribunal in this respect is that the workman was doing his job from 1980 regularly and the cleaning an area not exceeding 5000 sq.ft. during his assignment of duty of 29 hours a week. However, the case of the workman was that even if 29 hours assigned of duty is taken into consideration he was invariably and intermittently called upon to do other duty. The finding of the Tribunal in this regard being based on appreciation of evidence can be better understood if they are quoted in extenso: “Thus as per the entries made in the Attendance register the workman worked total period of 29 hrs. in a week. The workman in his deposition and also in the rejoinder filed on his behalf he has claimed that though he worked till 5.30 P.M. but 3 in the Attendance register he has shown to have worked till 2 P.M. at the instance of the Branch Manager. Zerox copy of the joint inspection report (Ext. W/3) clearly shows that Sri Salim Ansari has worked as a Messenger such as going to the post office, different offices, parties for clearing return and for purchasing and bringing stationeries etc. during the period 1988 to 1996. The fact that other types of works excepting those of sweeper cum Farash were taken from Sri Ansari is also admitted by M.W.1 but according to him other works are entrusted to Ansari only when some staff remains on leave and within duty hours of Sri Ansari, but the workman in his deposition has stated that upto 2 P.M. he cleaned and wiped the floor area, furnitures parking area etc. and after 2 P.M. additional works of Messenger are done by him. The claim of the workman that his services were utilized by the Management for other works after 2 P.M. appears convincing. As admitted by the Management witness No.1 in his deposition, it takes upto 2 P.M. for Ansari to complete his works as a part time sweeper and Farash. It is not the case of Management that when additional 4 work is given to Sri Ansari he does not do the works of Sweeper and Farash in full. Though the Management witness no.1 has said that Sri Ansari has been separately paid for the additional work no document of any kind has been filed. Ext. W/20 and W/22 (payment vouchers) show that only travelling expenses have been paid. In the written statement (para 3) filed on behalf of the Management it is clearly stated that for the additional work travelling expenses are paid to Ansari like other regular employees. In the joint inspection report it is stated that Sri Ansari has worked not less than 29 hours per week. It is based on the entries made in the Attendance register. It seems that since Sri Ansari worked as a sweeper and Farash upto 2 P.M. he has mentioned the same time in the Attendance register at the instance of the Branch Manager and since the other works of a messenger are taken from him after 2 P.M. the same is not mentioned in the Attendance register.” A question would arise whether such meticulous examination of fact based on appreciation of evidence can be interfered 5 by this writ Court on the mere ipsi dixit of the management petitioner that the workman was making his demand only for regularization on particular post of messenger. His demand infact was that every day from the morning to evening he was in the Bank doing cleaning work as also other work being assigned to him as and when required and therefore, mere additional payment was not good enough to deny him from payment of full wages as per the Bank circular. Regularization here would not be anything else but securing a person of his assured means of sustenance during the period he is called upon to perform such duty. This aspect of the matter also becomes clear from the following findings of the Tribunal "Thus from examination of the entire evidence both oral and documentary and the circumstances of the case I find that Sri Salim Ansari has been working full time job though he is paid as a part-time sweeper-cum- Farash. Accordingly I find that the action of the Management in not regularizing Md. Salim Ansari to 6 full-time job in the full time scale is not legal and justified as per their own circulars which are based on the settlement arrived at between the Management and the unions." It is thus not correct to say as has been canvassed that the Tribunal did not take into account the circular of the Bank on the subject of regularization which were based on settlement of the Management Bank with the unions. The effort of the counsel for the petitioner to confine the case of workman for his regularization in the post of Messenger is wholly misplaced as that was never the case of the workman. That being so, the finding arrived by the Tribunal and the consequential award given by the Tribunal in favour of workman does not suffer from any error. The impugned award, therefore, cannot be interfered by this writ Court and accordingly, this application is dismissed. (Mihir Kumar Jha,J.) Surendra/