IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:07.08.2009 CORAM: THE HON'BLE MR. JUSTICE P.JYOTHIMANI WRIT PETITION Nos.7199 to 7204, 8813 & 10856 of 2004, 10857 & 17858 of 2004 & 8168 and 8169 of 2004. .. All Bank Appraisers' Federation, Tamil Nadu rep. By its General Secretary Mr.K.Vijayarangan No.1, Kattaikaran Street Cuddalore 607 002. .. Petitioner in all WPs. vs. 1. Government of India Ministry of Labour New Delhi. .. R.1 in Wps.7199 to 7204/2004 2. The Government of India rep. By its Secretary to Government Ministry of Labour Shram Sakthi Bhavan Rafi Marg New Delhi 110 001. .. R.1 in Wps.8813,10856,10857, 17858, 8168 & 8169/2004 3. The Management Punjab National Bank Head Office, No.7, Bhikhaiji Cama Place Africa Avenue New Delhi 110 066. .. R.2 in WP.7199 of 2004 4. The Management Corporation Bank Head Office, Mangalore 575 001. .. R.2 in WP.7200 of 2004 https://hcservices.ecourts.gov.in/hcservices/ 5. The Management Canara Bank No.72, J.C. Road Bangalore 560 002. .. R.2 in WP.7201 of 2004 6. The Management Central Bank of India Head Office,Chandramukhi Nariman Point Mumbai 400 021. .. R.2 in WP.7202 of 2004 7. The Management Union Bank of India Head Office, Back Bay Reclamation Point 239 Nariman Point Mumbai 400 021. .. R.2 in WP.7203 of 2004 8. The Management UCO Bank Head Office, No.10, B.T.M. Sarani Calcutta 700 001. .. R.2 in WP.7204 of 2004 9. The Management Syndicate Bank Head Office, Manipal, Karnataka 576 119. .. R.2 in WP.8813 of 2004 10.The General Manager (S.Z.) Bank of Baroda, Zonal Office No.90, C.P.Ramaswamy Road Alwarpet, Chennai 600 018. .. R.2 in WP.10856 of 2004 11.The Chief Manager Indian Bank Head Office 31 Rajaji Salai Chennai 600 001. .. R.2 in WP.10857 of 2004 12.The Assistant General Manager Indian bank Circle Head, Circle Office No.10, Kamaraj Street Pondicherry 605 011. .. R.2 in WP.17858 of 2004 13.The Management Indian Bank Head Office 31 Rajaji Salai Chennai 600 001. .. R.2 in WP.8168 of 2004 https://hcservices.ecourts.gov.in/hcservices/ 14.The Management Bank of Baroda Zonal Office South No.90, C.P.Ramawamy Road Alwarpet Chennai 600 018. .. R.2 in WP.8169 of 2004 Writ petitions filed under Article 226 of the Constitution of India praying for issuance of Writ of Certiorarified Mandamus and Mandamus as stated therein. W.P.No.7199 to 7204, 8813 & 10856/04, 10857 & 17858/2004 To issue a writ of certiorarified mandamus to call for the records relating to the impugned order dated 17.12.2002 passed by the Ist respondent in L-12011/118/2002-IR (B-11) No.L-12011/114/2002-IR (B-II), L-12011/116/2002-IR (B-II), L-12011/119/2002-IR (B-II), L- 12011/115/2002-IR (B-II), L-12011/117/2002-IR (B-II) (WP NO.7199 TO 7204/2004 dated 9.6.2003 passed by the Ist respondent No.L- 12011/249/2002-IR (B-II), (WP 8813/04) dated 24.3.2004 passed by the Ist Respondent in No.L-12011/24/2003-IR (B-II)(WP 10856/04) dated 24.3.2004 passed by the Ist Respondent in No.L-12011/250/2002-IR (B-II) (wp 10857/04) dated 31.5.2004 passed by the Ist Respondent in NO.L-12011/22/2004-IR (B-II) (WP 17858/04) respectively and quash the same and consequently to refer the industrial dispute for adjudication, award and costs. W.P.NO.8168 & 8169/04 To issue a writ of mandamus directing the Ist respondent to refer the dispute relating to the regularization of services of Jewel Appraisers of the 2nd Respondent Bank for adjudication award costs. For petitioner : Mr.M.Muthupandian For 1st respondent : Mr.V.Ravi For R.2 in WP.7199/2004 : Mr.S.Jayaraman For R.2 in WP.7200/2004 : Mr.S.Sethuraman For R.2 in WP.7201/2004 : Mr.P.R.Raman For R.2 in WP.7202/2004 : Mr.T.M.Hariharan For R.2 in WP.7203/2004 &: Mr.C.Karthick for 8813/2004 M/s.T.S.Gopalan & Co., For R.2 in WP.7204/2004 : Mr.Gowtham Narayanan https://hcservices.ecourts.gov.in/hcservices/ For R.2 in WP.10856/2004 : Mr.K.S.V. Prasad & 8169 of 2004 For R.2 in WP.10857/2004 : Mr.K.Vijayan for & 8168 of 2004 M/s.King & Partridge For R.2 in WP.17858/2004 : Mr.V.Kalyanaraman for M/s.Aiyar & Dolia COMMON ORDER In all the above writ petitions, the issue involved is in respect of the claim of All Bank Appraisers' Federation, Tamil Nadu for regularisation of the services of Jewel Appraisers in various banks. 2. The first batch of eight cases in W.P.Nos.7199 to 7204 of 2004, 8813 & 10856 of 2004 is filed by the Jewel Appraisers in Punjab National Bank, Corporation Bank, Canara Bank, Central Bank of India, Union Bank of India, UCO Bank, Syndicate Bank and Bank of Baroda, challenging the orders of the Union of India, Ministry of Labour, wherein the Government after considering the conciliation failure report of the respective Labour Officers, passed uniform orders, as follows: " A similar dispute on the claims of Jewel Appraisers has been pending before the Hon'ble High Court of Madras in Writ Appeal No.465 of 2001 filed by the management of Indian Overseas Bank. It is,therefore, considered not appropriate to refer the present dispute to the Tribunal for adjudication as the matter is subjudice before the High Court." 3. The second batch of writ petitions in W.P.Nos.10857 and 17858 of 2004 is also filed by the same Federation relating to the claim of regularisation by the jewel appraisers of Indian Bank. In those cases, the Government of India, after considering the conciliation failure report, passed the following order: " The claims of Jewel Appraisers has been pending before the Hon'ble High Court of Madras in a Writ Petition No.32994 of 2002 filed by the Indian Bank Employees' Union arising out of the Award dated 2.8.2002 passed by CGIT-cum-LC, Chennai in ID No.556/2001. It is, therefore, considered not appropriate to refer the present dispute to the Tribunal for adjudication as the matter is subjudice before the High Court." https://hcservices.ecourts.gov.in/hcservices/ 4. The third batch of cases in W.P.Nos.8168 and8169 of 2004 is filed by the Jewel Appraisers of Indian Bank and Bank of Baroda respectively and in those cases, even after the conciliation failure report was sent by the concerned Conciliation Officer on 26.11.2002 and 30.1.2003 respectively, the Government of India, has not passed any orders and therefore the prayer in these cases are for a direction against the Government of India to pass orders. 5. The case of the petitioner Union in these cases is that the respective banks are advancing jewel loans, which according to the petitioners, is the major portion of the total loan amounts advanced by the second respondent banks running to several crores of rupees. It requires the jewel appraising work and the Jewel Appraisers are employed by the respective banks on piece-rate basis and are paid wages at the rate of Rs.3,000/- per month. (a). According to the petitioners, the appraisers are to report to the bank every day and they have to be present throughout the day during banking hours and therefore, the Jewel Appraisers are working under the control of the banks concerned and it is their duty to find out that the jewels which are pledged are of pure quality. (b). It is their case that in addition to that, they fill up jewel loan applications and obtain signatures from the customers. It is also stated that the bank collects Rs.1,000/- towards security deposit from each appraiser and therefore, according to them, their work is permanent throughout the year and it is indispensable in the loan transaction of the banks. Even though they are permanent, they are not given other benefits given to permanent workers of the banks. (c). The petitioner Federation also informed the concerned banks about the award passed in I.D.No.25 of 1977 by the Industrial Tribunal, Chennai in respect of Jewel Appraisers employed in Indian Bank, directing their regularisation and that the award was confirmed by the High Court in the order dated 14.2.1986 in W.P.No.1947 of 1980 and again confirmed by the Division Bench in W.A.No.330 of 1986 and finally approved by the Hon'ble Supreme Court in SLP No.10054 of 1990. (d). It was, in those circumstances, the Federation had raised an industrial dispute before the Regional Labour Commissioner, who after giving notice to the bank, found that there was no amicable settlement and submitted the respective failure reports. While so, the impugned orders came to be passed by the Government of India refusing to refer the dispute to the Industrial Tribunal on the ground that in respect of Jewel Appraisers in Indian Overseas Bank, the matter was pending before this Court in W.A.No.465 of 2001. (e). The case of the petitioner Federation is that the said Writ Appeal in W.A.No.465 of 2001 filed by the Management of Indian Overseas Bank was subsequently dismissed by the Division Bench of https://hcservices.ecourts.gov.in/hcservices/ this Court on 18.2.2004 holding that the Jewel Appraisers of the Indian Overseas Bank are also workmen in the line of the Tribunal award passed in I.D.No.25 of 1977 in respect of Indian Bank Jewel Appraisers, which was confirmed by the Supreme Court. Therefore, the writ petitions are filed challenging the respective impugned orders contending that since the writ appeal has been dismissed in favour of the workmen viz., Jewel Appraisers, it is the duty of the Government to refer the dispute to the Industrial Tribunal. 6. During the course of arguments, it has been brought to the notice of this Court that as against the judgment of the Division Bench in W.A.No.465 of 2001 dated 18.2.2004, appeal was filed in the Supreme Court by the Management of Indian Overseas Bank and the Hon'ble Supreme Court, set aside the judgment of the Division Bench as also the award of the Industrial Tribunal relating to the Jewel Appraisers of the Indian Overseas Bank holding that the Jewel Appraisers of the Indian Overseas Bank are not workmen within the meaning of section 2(s) of the Industrial Disputes Act and that was reported in Indian Overseas Bank vs. Workmen [(2006) 3 SCC 729]. 7. A reference to the judgment of Division Bench of this Court in W.A.No.465 of 2001 dated 18.2.2004 reported in General Manager, Indian Overseas Bank vs. Presiding Officer, Industrial Tribunal [(2005) 1 LLJ 623]. shows that the Division Bench has taken note of the earlier judgment in respect of Jewel Appraisers engaged by the Indian Bank. It is seen from the judgment of the learned Single Judge who has considered the case of jewel appraisers of Indian Bank, reported in Indian Bank vs. Workmen [1986 (2) MLJ 59], that the Jewel Appraisers of the said bank were paid monthly remuneration of Rs.100/- and as per the terms and conditions by which they were appointed in the Indian Bank, the Jewel Appraisers were working regularly during banking hours and the bank had disciplinary control over the said Jewel Appraisers and certain conditions were to be fulfilled before any leave was granted to them and the Jewel Appraisers were paid a minimum amount per month like salary. In fact, on the nature of work rendered by the Jewel Appraisers of Indian Bank, the finding of the High Court is as follows: " 15. ..... As far as Appraisers are concerned, they are paid monthly minimum of Rs.150. A place of work is allotted for them. They are bound to be present in Bank premises during the fore-noon for 4 hours i.e. during entirety of business hours. Without prior permission they cannot absent themselves, and if so done, proportionately there will be deduction out of the monthly payment made. Part of the tools required for their job is supplied by the Bank. Commission collected from customers is paid at the end of the month, depending upon the quantum of work done by them. The duration of their service is fixed at one year at a time. All these satisfy the vital tests laid https://hcservices.ecourts.gov.in/hcservices/ down by the Supreme Court, and hence, the Tribunal had taken into account relevant materials, and this is not a case wherein hardly few materials are found to sustain its finding. Rather considerable material flowed only from the witnesses of the Bank, and which strengthens the finding of the Tribunal." 8. It was taking note of the said distinctive factor, the award passed by the Industrial Tribunal in respect of Indian Bank Jewel Appraisers in I.D.No.25 of 1997 was confirmed in Indian Bank vs. Workmen [1986 (2) MLJ 59], the learned single Judge's order was again taken on appeal in W.A.Nos.330 and 350 of 1986 before the Division Bench of this Court, the same was dismissed on 03.03.1990 and the Special Leave Petition in SLP No.10054 of 1990 filed by the Indian Bank was also dismissed by the Hon'ble Supreme Court on 10.10.1990 and therefore, in respect of Jewel Appraisers of Indian Bank, the award in I.D.No.25 of 1997 has become final to the effect that as per the terms and conditions of service, they being employed by the Indian Bank, remained workmen within the meaning of section 2(s) of the Industrial Disputes Act, 1947. 9. In the dispute raised by the Jewel Appraisers of the Indian Overseas Bank, it was specifically raised by the Jewel Appraisers of the Indian Overseas Bank that they were appointed for particular branches of Indian Overseas Bank and also utilised for certain clerical jobs like, entering applications for jewel loan and they were asked to go for other branches for verification and appraisal of jewels and they were necessarily to be present between 10.00 am. to 2.00 pm. and were paid commission of Rs.3/- for every Rs.1000/- sanctioned by way of loan. It was the contention of the Indian Overseas Bank that the Jewel Appraisers were not workmen by relying upon the judgment of the Supreme Court in M/s. Puri Urban Cooperative Bank vs. Madhusudan Sahu [1992) 3 SCC 323] and that the terms and conditions for Jewel Appraisers of Indian Bank were totally different from that of Indian Overseas Bank. After adjudication, the Industrial Tribunal in I.D.No.13 of 1990 by its award dated 7.9.1999, directed the Indian Overseas Bank to treat the Jewel Appraisers as part-time clerks from the date of their filing claim statements. The said award was confirmed by a learned Single Judge in W.P.No.12015 of 2004 by order dated 25.1.2001 by dismissing the writ petition filed by the Union as well as the bank, as reported in All India Overseas Bank Employees' Union vs. Industrial Tribunal [(2001) 2 LLJ 345]. In fact, the award of the Tribunal as well as the order of learned Single Judge was confirmed by the Division Bench of this Court in W.A.No.465 of 2001 by judgment dated 18.2.2004 by holding that the judgment of Supreme Court in M/s.Puri Urban Co-operative Bank v. Madhusudan Saghu (1992 (3) SCC 323) is an isolated case. The Division Bench has further held as follows: https://hcservices.ecourts.gov.in/hcservices/ " 38. Except the difference, namely, in the case of Jewel Appraisers of Indian Bank, that they were paid a monthly wage of Rs.100 and in the case of Jewel Appraisers of appellant-bank they are paid commission, there is no other difference. In so far as the payment of commission, clause (iv) of sub Section (rr) of Section 2 of the Industrial Disputes Act describes that "any Commission payable on promotion of sales or business or both could be considered as wages." Applying the definition as it is admitted that the Jewel Appraisers of the appellant-bank are paid commission of Rs.3 per every one thousand rupees sanctioned by way of loan, such payment should be considered as wages under the definition of wages. If once the above conclusion is arrived at, we absolutely do not have any hesitation to hold that the above judgment in the case of Jewel Appraisers of Indian Bank is applicable in all fours to the facts of the present case. We may also point out that this order of the learned single Judge was taken on Writ Appeal in W.A.No.330 of 1986 and the Division Bench in fact after elaborately considering the submissions and the various judgments of the Apex Court, approved the view of the learned single Judge. In fact, it was considered in the said judgment that the Jewel Appraisers of Indian Bank are also performing clerical jobs." 10. The Hon'ble Supreme Court, in Indian Overseas Bank vs. Workmen (2006 (3) SCC 729), while setting aside the above said judgment of the Division Bench as well as the order of learned Single Judge and the award of the Tribunal in respect of Jewel Appraisers of Indian Overseas Bank, has clearly noticed the distinctive instances in respect of services of the Jewel Appraisers of the Indian Bank and the Indian Overseas Bank. Taking note of the fact that there was no evidence to show that the Jewel Appraisers have done clerical work and even if such work was done it was by way of helping loanees, held that after Shastri Award, there is no question of any part-time clerk being appointed. 11. The Supreme Court has taken note of the fact that the Jewel Appraisers were appointed as independent contractors, who were free to work elsewhere and therefore, they are not employees, not subject to disciplinary control of the Bank, not subject to fixed working hours, not employed based on any employment procedure and not assigned duty outside their contract except incidentally permitting them to fill up the forms. The Supreme Court has also taken note of the circular issued by the bank dated 23.8.1975 to the effect that the Jewel Appraisers cannot be engaged in any other work as they are not regular employees and that the said circular was reiterated by subsequent circular dated 2.1.1978 to the effect that they are all on commission basis and they are not entitled to do any other work. The Supreme Court thus came to the conclusion that the dispute in Indian https://hcservices.ecourts.gov.in/hcservices/ Bank case was conceptually different by categorising the distinction as follows: " 14. A few distinguishing facts need to be noted. In Indian Bank case (1986 (2) MLJ 59) there was evidence to show that the jewel appraisers work regularly for four hours. It was clearly admitted in the instant case by the witnesses of jewel appraisers that there was no fixed period of work and they could come and go at any point of time. In Indian Bank case (1986 (2) MLJ 59) the Bank had disciplinary control on the jewel appraisers. In the instant case it was admitted by the witnesses that the Bank did not exercise any disciplinary control. In Indian Bank case (1986 (2) MLJ 59) conditions were to be fulfilled before any leave was granted. In the present case the jewel appraisers were not required to sign attendance register and also were not required to make any leave application. The most relevant factor in Indian Bank case (1986 (2) MLJ 59) was that the jewel appraisers were paid a minimum amount per month which was somewhat akin to salary. In the instant case, the amount was paid on commission basis by the loanee and not by the Bank. 15. A few other facts need to be noted. In the present case as well as in Puri Co.op. Bank case (1992 (3) SCC 323) the jewel appraisers were required to weigh the ornaments brought to the Bank for pledge and to appraise the quality, purity and value. The jewel appraisers could be asked to do this exercise but not the manner in which it was to be done. In both the cases the respective Banks had their lists of appraisers. It was not obligatory for the Bank to allot work to any particular jewel appraiser." Ultimately, after analysing the distinction between the regular employees of the bank and Jewel Appraisers, it was held as follows: " 18. At this juncture the distinction between jewel appraisers and the regular employees of the Bank can be noted. Regular employees Jewel appraisers 1.Subjectt qualification and age prescribed. 1. No qualification/age. 2. Recruitment through employment exchange/Banking Service Recruitment Board. 2. Direct engagement by the local Manager. 3. Fixed working hours. 3. No fixed working hours. https://hcservices.ecourts.gov.in/hcservices/ Regular employees Jewel appraisers 4. Monthly wages. 4.No guaranteed payment, only commission paid. 5.Subjectto disciplinary control. 5.Nodisciplinary control. 6. Control/supervision is exercised not only with regard to the allocation of work, but also the way in which the work is to be carried out. 6.No control/supervision over the nature of work to be performed. 7. Wages are paid by the Bank. 7. Charges are paid by the borrowers. 8. Retirement age. 8. No retirement age. 9. Subject to transfer. 9. No transfer. 10. While in employment cannot carry on any other occupation. 10. No bar to carry on any avocation or occupation. Therefore, the jewel appraisers are not employees of the Bank." 12. Therefore, after the final judgment of the Hon'ble Supreme Court in respect of Indian Overseas Bank, it is clear that the terms and conditions relating to Jewel Appraisers of Indian Bank, which were ultimately confirmed by the Apex Court to the effect that the Jewel Appraisers of Indian Bank based on their conditions of service are to be treated as workmen as per section 2(s) of the Industrial Disputes Act are totally different from that of Jewel Appraisers of Indian Overseas Bank on the basis of their service and nature of work done by them, as categorised by the Apex Court in para-18 of the said judgment in Indian Overseas Bank vs. Workmen [(2006) 3 SCC 729]. 13. By applying the yardstick propounded by the Apex Court as stated above, to the facts of the present case, it is clear that the Federation has not only claimed the Jewel Appraisers as workmen under section 2(s) of the Industrial Disputes Act,1947, but also claim to regularise them into service by treating them as regular employees of the respective banks. In fact, in the reply filed by them opposing the petitions of the Federation before the Conciliation Officer, the respective banks have taken a clear stand that in respect of Indian Bank there was an agreement providing business hours to the Appraisers and such agreement has not been entered into by them. The Punjab National Bank in the reply before the Conciliation Officer has in fact stated that (i) there is no agreement between the bank and the gold appraisers; (ii) there are no fixed hours during which the appraisers are to be present in the bank; (iii) the appraiser is https://hcservices.ecourts.gov.in/hcservices/ called to the branch when he is required for the purpose of certifying the quality of jewels deposited by the borrower; (iv) there is no restriction for the appraiser to do his private jewel business; (v) the payment towards professional fees is paid to the appraiser directing the borrower about which the bank is not concerned; (vi) there is no control or supervision of the bank over the appraiser and the appraisers are not under the disciplinary control of the bank and there is no master-servant relationship between the bank and the appraiser who is not in the muster roll of the bank; and (vii) there is no qualification or age limit prescribed for an appraiser. The appraiser is only asked to give a certificate in respect of quality and weight of the gold jewels assessed by him. 14. Likewise, the Corporation Bank has also stated in its reply before the Conciliation Officer that the bank has no supervision or control over the work of Jewel Appraisers and they are not having definite working hours and they have no place of work in the bank and they are not provided with any instrument. It is also stated that the Indian Bank Service Condition for appraisers is not applicable to the Corporation Bank as they are paid appraising charges by the customers and not by the bank. It is also stated that there is no minimum qualification required for appointment of jewel appraiser and the only requirement is that he should be proficient in his related trade and he is at liberty to pursue his business. It is also stated that the work of an appraiser is contingent in nature and there is no control or supervision of the bank required and the relationship is purely contractual and no employer-employee relationship exists. 15. In the counter affidavit filed by the bank before this Court in W.P.No.7200 of 2004, in respect of service conditions of appraisers, it is stated as follows: " 5. This respondent