1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 895 OF 2009 The Asst. General Manager, State Bank of India .. Petitioner Vs The Deputy General Secretary, State Bank of India Karmachari Sena .. Respondent A.G. Damle for the petitioner S.M. Dharap i/b Mandar Limaye for the respondent CORAM : Smt. V.K. TAHILRAMANI, J. DATE : 8th September, 2009 P.C.: 1. Heard the learned counsel for the petitioner bank and the learned counsel for the respondent union. The respondent union represents two workers i.e Shri. B.D. Bagane and Shri. M.B. Sarnaik. 2. Rule. By consent, rule is made returnable forthwith and the matter is heard finally. 3. Through this petition, the petitioner has impugned the award dated 2nd February, 2008 passed by the Industrial Tribunal, Kolhapur RMA wp895-09.sxw 2 whereby the reference (IT) No. 1 of 2003 came to be partly allowed and it was held that the action of terminating the services of workmen namely Shri. B.D. Bagane and Shri. M.B. Sarnaik is illegal and hence, they are entitled for the relief of reinstatement with continuity of service. It may be stated here that there was no order in respect of back wages. 4. Shri. B.D. Bagane was appointed in the petitioner bank in February 1988 as a messenger cum peon in its branch at Laxmipuri, Kolhapur. Shri. M.B. Sarnaik was appointed in the year 1987 as a messenger cum peon in the branch of the petitioner at Udyamnagar , Kolhaur. The case of both Shri. B.D. Bagane and Shri. M.B. Sarnaik was that they had worked with the petitioner bank for more than 240 days in a year i.e upto March, 1997 but they were not made permanent in service with an intention to deprive them of the benefits of permanency. Both of them came to be terminated on 31st March, 1997. A dispute was raised and ultimately reference (IT) No. 1 of 2003 came to be made to the Industrial Tribunal at Kolhapur, which was partly allowed. 5. The case of the employees concerned with the dispute is that they RMA wp895-09.sxw 3 came to be terminated without following due process of law though they have rendered continuous service for more than 240 days in a period of 12 months prior to their termination. This contention has been denied by the petitioner bank. As far as the aspect of two employees working for 240 days in the preceding year is concerned, the petitioner bank would have maintained attendance record, wage record and other documents pertaining to the employment of two employees which would be in the custody of the petitioner bank. However, no documents were produced by the petitioner bank before the Industrial Tribunal. In the absence of these documents, specially the attendance record and the wage record, the Tribunal was of the opinion that there were no reason to disbelieve the statement of the witnesses which shows that the workmen concerned have worked for more than 240 days in the petitioner bank as messengers cum peon and that there is ample work of the said nature in the petitioner bank. The petitioner bank was not able to bring anything on record to show that the two employees had not worked for 240 days in the preceding 12 months as claimed by them and on the other hand, the evidence RMA wp895-09.sxw 4 has been brought on record to show that these workmen had worked for more than 240 days in the preceding 12 months in the petitioner bank. 6. Thereafter, the learned counsel for the petitioner bank submitted that various settlements were entered into between the petitioner bank and the respondent union. The last settlement being in the year 1997. He has placed reliance on this settlement to contend that in view of this settlement, these two workmen could not be made permanent and his further contention is that as these two workers were only employed on temporary basis and at no point of time, they had completed 240 days as contended by them, hence, in view of terms of settlement, they could not be made permanent or even taken back in service. Mr. Damle submitted that as per the settlement, a chance was to be given to eligible temporary daily wager / casual employees for being considered for permanent appointment in the bank. He further submitted that clause 9 of the settlement dated 17th November, 1987 provided that temporary employees / daily wager / casual etc shall not be entitled for any other claim including the back wages nor they will be entitled for RMA wp895-09.sxw 5 any further chance for being considered for permanent appointment. The learned counsel further submitted that in response to the said settlement, the Bank gave an advertisement in the newspapers calling upon all eligible temporary employees to apply for the permanent appointment in the subordinate cadre, subject to certain norms as contained in the said Settlement. In response to the said advertisement, the workmen applied to the Bank. The said workmen were duly considered / interviewed by the Bank's Interview Committee and were wait listed at Sr. No. 63 and 78 for permanent employment, respectively. As per settlement, the wait listing came to be expired on 31st March, 1997. In view of the Settlement, both the employees could not claim permanency and they could not have been reinstated by the Industrial Tribunal. He submitted that the Settlements would be binding on the parties. It is pertinent to note that as far as the Settlements in question are concerned, the Settlements have not been brought on record. The Settlements are in custody of the petitioner bank, however those Settlements have not been produced by the petitioner bank for reasons best known to them and hence, it would not be possible to RMA wp895-09.sxw 6 consider the settlements in absence of the settlement being on record. 7. The learned counsel for the petitioner submitted that in the interest of justice, the matter may be remanded back and the petitioner bank be allowed to lead evidence in respect of settlements and the petitioner be given an opportunity to bring the said settlements on record. However, it is seen that in the matter before the Industrial Tribunal, there was ample opportunity to the petitioner to bring the said settlements on record. Despite that, the settlements were not brought on record. As regards the alternative submission made by Shri. Damle, learned counsel that remand should be made to the Industrial Court to enable the petitioner to bring the settlement on record, in so far as jurisdiction to remand a matter is concerned, remand cannot be made at mere askance. This Court will have to record a finding that the impugned judgment is illegal because it is not according to the pleadings and evidence tendered by the parties and the material available on record. Having gone through the entire record, this Court is unable to find out any fault with the impugned judgment. The jurisdiction under Article 227 of the RMA wp895-09.sxw 7 Constitution is limited to see whether on the basis of available pleading and proof before the subordinate Court it has acted within its bounds or not. Looking to the material on record, the Industrial Tribunal has rightly observed that the settlements have not been brought on record and in absence of these documents, it would not be possible to look into the contents of the said documents and thereafter it has passed the award. In view of the above facts, no interference is called for in the award. Petition is dismissed. 8. No order as to cost. (SMT. V.K. TAHILRAMANI, J) RMA wp895-09.sxw 8 RMA wp895-09.sxw