Letters Patent Appeal No.1461 OF 2001 Appeal against the judgment and order of the writ court dated 6-11-2001 passed in C.W.J.C.No. 9048 of 1997 ----------------- STATE BANK OF INDIA, Local Head Office, Judge’s Court Road, Patna, through Assistant General Manager ( Personnel and HRD)-----------------Appellant Versus 1. UNION OF INDIA , Ministry of Labour, Shram Shakti Bhawan Parliament Street, New Delhi 2. Presiding Office, Central Government, Industrial Tribunal No.1, Dhanbad 3. Assistant Labour Commissioner ( Central ) Maurya Lok Complex, New Dak Bunglow Road, Patna-800001 4. Suresh Thakur son of late Pati Thakur 5. Ram Nandan Prasad son of Sri Saddat Prasad 6. Jogendra Rajak son of Shri Kapildeo Rajak. 7. Raj kishore Sharma son of Sri Sachidanand Sharma. 8. Raju Prasad Son of Sri Sita Ram Sao. 9. Om Prakash Yadav Son of Sri Ishwar Dayal Yadav 10. Binay Mishra Son of Sri Sheio Ram Mishra 11. Shiva Shankar Prasad Son of Sri Sukhdayal Prasad 12. Shiva Shankar Pal Son of Sri Ram Nath Bhagat 13. Md. Suleman Son of Md. Ibrahim. 14. Dinesh Prasad Sinha Son of Sri Mathura Prasad 15. Jayshree Yadav S/o Sri Ramayan Yadav All C/o State Bank of India Employee Union ( Bihar State ) Ist. Floor, Mohini Market, Exhibition Road, Patna-1. 16. State Bank of India Employee Union ( Bihar State ) Registered Trade Union of Bank Employees having its Central Office at Ist. Floor, Mohini Market, Exhibition Road, Patna-800001. 17. Smt. Anju Devi W/O Late Kanhai Prasad 18. Sushma Kumari ( minor ) D/O Late Kanhai Prasad 19. Babli Kumar ( Minor ) D/O Late Kanhai Prasad 20. Prakash Kumar ( Minor ) son of late Kanhai Prasad All legal heirs of deceased respondent 8 of the writ application namely Kanhai Prasad, they presently residing C/O Vijay Kumar, Mohalla- Makhanpur, Kurmi Toli, P.O. Guljarbagh, Patna- 800007 under the natural guardianship of their mother Smt. Anju devi ............................................. Respondents For the Appellant :- Mr. Ajay Kumar Sinha, Advocate For the Respondents : DR. S.N. JHA, SR. ADVOCATE, DR. ANIL KR. UPADHYAY, MR.AJAY KUMER AND MR.ABHINAV SHRIVASTAVA ADVOCATES - 2 - P R E S E N T THE HON'BLE MR. JUSTICE SHIVA KIRTI SINGH THE HON'BLE MR. JUSTICE DHARNIDHAR JHA ---------------- , Shiva Kirti Singh , & Dharnidhar Jha, JJ Heard the parties. 2. This letters patent appeal is directed against the judgment and order of the writ court dated 6th November, 2001 whereby the writ petition preferred by the State Bank of India was dismissed and no interference was made with the award dated 15-5-1997 given by the Central Government Industrial Tribunal No.1 at Dhanbad on a reference under section 10(1)(d) of the Industrial Disputes Act, 1947. ( hereinafter referred to as ` the Act’). 3. 13 individual workmen were aggrieved by termination of their services and hence the competent authority made a reference with regard to validity of Bank’s action for terminating their services. The writ court has noticed the terms of reference which was in the following terms ; “ Whether the management of State Bank of India was justified in terminating the services of the under mentioned workmen with effect from 5-3-1986 ? If not, to what relief the workmen were entitled to (sic) ?” 4. The Tribunal considered all the relevant facts and decided the issue whether the State Bank of India was justified or not in terminating the services of the concerned workmen in favour of the workmen inasmuch as they had, as per finding given by the Tribunal, been employed on casual basis for several years but were terminated without any notice or compensation of any kind. The Tribunal further found that in 1984 the Bank had framed a policy decision and as per that circular the workmen - 3 - like those concerned in the reference were entitled for being considered for regularization but instead of considering their claim, their services were terminated. 5. On consideration of the relevant facts the writ court found no good ground to interfere with the findings of fact given by the Tribunal and also with the relief granted to the workmen by way of direction to the management in the following terms:- “ The action of the management of State Bank of India was not justified in terminating the services of the concerned workmen as mentioned in the Annexure to the schedule of reference with effect from 5-3-86. Consequently the concerned workmen are entitled for their reinstatement and regularization with effect from 5-3-86.” xxxxxxxxx : “The management is directed to reinstate and regularize their services with effect from 5.3.86 and fix up the pay and seniority from this very date. But the management is directed to pay 40% of full back wages with effect from the Ist.of November,1999 within two months from the date of publication of the award in the gazette of India.” 6. Before us, the learned counsel for the appellant sought to challenge the findings of the Tribunal that the termination was not justified as well as the relief for reinstatement and more particularly the relief for regularization with effect from 5-3-1986. 7. So far as the finding of the Tribunal to the effect that termination of the concerned workmen was not justified is concerned, we find no material to interfere with the said findings. A perusal of the judgment of the writ court also gives a clear impression that no serious challenge was made to such finding of the Tribunal. The main thrust of argument on behalf of Bank before the writ court was against the relief for regularization of the concerned workmen with effect from 5-3-86 to fix up - 4 - their pay and seniority from that very date. Same arguments have been advanced before us also and we find some merit in those submissions and hence we have gone through the arguments advanced before the writ court against the relief for regularization with effect from 5-3-1986 and fixing up their pay and seniority from that date. 8. The learned writ court has considered the judgments cited on behalf of the appellant such as in the case of Madhyamik Shiksha Parishad, U.P. Vs. Anil Kumar Mishra and others, AIR 1994 SC 1638 and State of U.P. and others Vrs. Ajay Kumar, (1997) 4 SCC 88 and some other judgments in which directions for regularization were not found justifiable in exercise of writ jurisdiction. Before us learned counsel for the appellant has cited the judgment of the Constitution Bench reported in the case of Secretary, State of Karnataka and ors Vrs. Umadevi and ors, reported in 2006 (4) SCC 1. The writ court held that the dispute did not involve the State but only the State Bank of India which had itself issued the absorption circular and hence purely temporary employees such as the concerned workmen in the present dispute had a right to be considered for regularization in accordance with the policy of the Bank. In the facts of the case the Tribunal was justified in directing for regularization of the workmen instead of directing for considering their regularization because it was obvious that once the Bank was given any latitude in the matter it would act unfairly and may again terminate the services of the concerned workmen. 9. No doubt the writ court was correct in its conclusions that in appropriate case the Tribunal may grant all the required reliefs to ensure - 5 - that the reliefs were not illusory, however, in view of discussions made in paragraph-19 of the judgment under appeal where it is noticed that “absorption under the circular under normal circumstances, is subjects to a selection process and the management has certain discretion in the matter”, we are of the view that there was no right in the concerned workmen to claim and to receive the relief of regularization without going through the selection process as envisaged in the policy decision evidenced by the relevant circular. 10. The power of High Court under writ jurisdiction cannot be compared to the power of the Tribunal which is statutory body bound by the provisions of statute but even in exercise of writ jurisdiction, specially in service matter this Court does not take upon itself the task of issuing appointment letters, making promotions etc. unless the circumstances are absolutely compelling. The employer has a legal duty to be fair to all similarly situated employees and the selection process for the purposes of regularization or absorption cannot be used so as to give any extra advantage to those who had to fight for an award before the Tribunal vis-a -vis those who have a right for consideration in terms of the policy decision itself. The interest of all the eligible employees has to be given equal weightage. Therefore, in our view the relief given by the Tribunal for regularization with effect from 5-3-86 and fixing up pay and seniority from that date needs interference to the extent that the direction for regularization and its consequential benefit should be substituted by a direction to consider the cases of the concerned workmen for regularization with effect from 5-3-86 or any other justifiable date in terms of then - 6 - existing circular bearing PER No. 77/84 dated 17-5-1984 (Ext.M/4) . While considering the cases of the concerned workmen for absorption or regularization in terms of the aforesaid circular, the concerned authority of the State Bank of India must apply same standard and must give same treatment to the concerned workmen as may have been given to the other employees of the Bank who were considered for absorption/ regularization in the year 1986 under the said circular. 11. With this modification in the judgment and order under appeal, the letters patent appeal is finally disposed of. ( Shiva Kirti Singh,J) ( Dharnidhar Jha, J) Patna High Court Dated the 29th April,2009 AFR Naresh