WRIT PETITION No. 8275 OF 2018

8th July 2019

Petitioner Counsel: Mrs. Anjali A. Joshi
Respondent Counsel: Shri N. W. Almelkar Shri R. M. Daruvala
Act Name:

Section :

Cases Cited :

JUDGEMENT

Sunil B. Shukre, J.

1. Heard. Rule. Rule made returnable forthwith by consent of the learned counsel for the parties.

2. In this case there has been a Memorandum of Settlement reached on 9th August, 2012 between the Management of the respondent bank and All India Central Bank of India Employees Federation (AICBIEF), the recognized majority union for other staff which has enured to the benefit of the petitioners who were then working with the bank at its various branches, as temporary/ casual workers. The settlement was that the bank, as one time measure, would allow the casual / temporary workers to participate in the recruitment process which would be initiated in the immediate future. The recruitment process as contemplated was for selection of the subordinate staff as “Safai Karmachari cum Sub Staff” on full time basis as per the eligibility criteria, along with fresh candidates. A summary of Memorandum of Settlement has been reproduced in the communication of the bank dated 14th August, 2012 which reads thus :

“CENTRAL OFFICE, CHANDERMUKHI
NARIMAN POINT, MUMBAI 400021
HUMAN RESOURCES DEVELOPMENT DEPARTMENT
(Industrial Relations and Policy)
Circular Letter No. CO:HRD:IRP:2012:13:17 August, 14, 2012
ALL ZONAL / REGIONAL OFFICES
MEMORANDUM OF SETTLEMENT DATED 09.08.2012 ENTERED INTO BY AND BETWEEN THE MANAGEMENT AND ALL INDIA CENTRAL BANK EMPLOYEES FEDERATION (AICBEF) (RECOGNIZED MAJORITY UNION FOR AWARD STAFF) ON CERTAIN ISSUES RELATING TO ALLOWING TEMPORARY/CASUAL WORKERS ENGAGED IN THE BANK OF A MINIMUM OF 45 DAYS SERVICE DURING A CONTIOUS PERIOD OF 12 MONTHS TO PARTICIPATE IN THE ENSUING RECRUITMENT PROCESS FOR SELECTION OF “SAFAI KARMACHARI-CUM-SUB-STAFF AND/OR SUB-STAFF, AS A ONE TIME MEASURE”.
SUMMARY :
(I) A Memorandum of settlement was entered into on 9th August, 2012 by and between the Management and All India Central Bank Employee's Federation (AICBEF) (Recognized Majority Union for (Award Staff), to the effect that as a one time measure the temporary / casual workers so engaged by various branches within the guidelines of Central Office Management will be allowed to participate in the Recruitment Process which will be initiated in the immediate future (but not in the subsequent process, if any) for selection to the post of sub-ordinate staff with the designation Safai Karmachari-cum-sub-staff” and or “Sub-staff, on Full-Time basis (as per the eligibility criteria) alongwith fresh candidates.
(ii) Further course of action in compliance to the terms of this MOS shall be issued from Recruitment & Promotion Division; Central Office, shortly.
1. A Memorandum of Settlement was entered into on 9th August, 2012, by and between the Management and All India Central Bank Employees' Federation (AICBEF), recognized majority Union for Award Staff, the silent features of the said MOS is enclosed.
2. The Bank has decided to recruit the sub-ordinate Staff with the designation 'Safai Karmachari-cum-sub-staff and Sub-staff through due process. However, considering the fact that hitherto some of the Branches have engaged temporary / casual workers in subordinate cadre within the Bank's guidelines, the matter of allowing them to participate in the Recruitment Process, which will be initiated in the immediate future (but not in the subsequent process, if any) as a one time measure has been discussed by and between the parties and after a series of deliberations the said MOS has been entered into on 9th August, 2012. As the contents of the said MOS are clear and unambiguous, the same needs no further amplification.
3. Further course of action in compliance to the terms of this MOS shall be issued from Recruitment & Promotion Division, Central Office, shortly.
4. All Zonal/Regional offices are accordingly advised to take note of the above and bring the contents of this circular and its enclosure to the notice of all branches / offices functioning under their control, besides displaying a copy of the staff notice board, for information. (RAJ KIRAN RAI G)
GENERAL MANAGERHRD
Encl : As above.”

3. In order to fulfill the obligation under the said Memorandum of Settlement, the bank indeed initiated recruitment process for selection of “Safai Kamgar cum Sub Staff”. But it appears, midway through, the process was cancelled. All the petitioners received individually a communication dated 4th July, 2014 informing them that the recruitment process has been cancelled.

4. Ordinarily, it was expected that all aggrieved persons like the petitioners would have approached this Court without any delay. After all, the communication dated 4th July, 2014 had affected their right substantially. The petitioners, however, did not approach this Court and when they approached this Court, month of December, 2014 had arrived and thus there was inordinate delay. Unfortunately, the petitioners have not given any explanation for the delay. It is orally submitted on behalf of the petitioners that petitioners were awaiting for the result of one writ petition pending before the Gauhatti High Court involving similar facts and issues and when they learnt about the decision having been rendered by the Gauhatti High Court against the management and in favour of some of the petitioners therein, the petitioners approached this Court. We are of the view that this could hardly be the explanation, much less reasonable explanation for the inordinate delay which has occurred in the present case, as this petition has got nothing to do with that case.

5. If there was delay on the part of the petitioners and no explanation has been given by the petitioners for the same, we feel, it has nevertheless not substantially affected the standing of the petitioners before this Court. The reason for taking such a view is that even the respondent bank has maintained its complete silence as regards what it did towards fulfillment of its obligation under the Memorandum of Settlement dated 9th August, 2012. This is a fact which when brought on record would significantly impact the whole case and the answer is still not available to us. When there was a settlement between the bank and the majority recognized union which obligated the bank to initiate the recruitment process as one time measure for giving opportunity of providing regular employment to the persons like the petitioners, the obligation was required to be fulfilled by the bank. The respondent bank is a public sector bank and is enjoined with a duty to act reasonably, legally and in fulfillment of its commitments given under the industrial agreement. Therefore, it was necessary for the respondent bank to have honoured its commitment given under the Memorandum of Settlement dated 9th August, 2012. It appears that the bank is yet to fulfill its obligation.

6. It is these facts which would entitle the petitioner to have an immediate relief from this Court in the present matter, irrespective of the delay on their part. We would have ordinarily refused even a smallest of reliefs to the petitioners, had it been the case that respondent-bank, a public sector undertaking, was never in the wrong box and that not being the case, we have made our conclusion and we have put it into words just now.

7. In the present case, by the communication dated 4th July, 2014 the recruitment process initiated in terms of the Memorandum of Understanding has been cancelled. Then, the new recruitment process which was required to be started in order to fulfill the obligation under the said settlement, was never commenced by the respondent bank. The grievance would not arise from cancellation of a recruitment process but it would certainly arise when after the cancellation of the recruitment process, no new recruitment process is initiated, in spite of the obligation imposed upon the bank in terms of the settlement dated 9th August, 2012. That is how, to this extent only, in our view the petitioners would be entitled to a relief in law. In the result, we allow the writ petition partly.

ORDER
i. The writ petition is partly allowed.
ii. We direct to the respondent bank to fulfill its obligation under the Memorandum of Settlement dated 9th August, 2012 imposing a duty to initiate the recruitment process only as one time measure for selecting, from amongst casual and temporary workers, “Safai Karmachari cum Sub Staff” on full time basis within a period of six months from the date of the receipt of order.
iii. By issuing such directions, we have not taken away discretion of the bank to determine the availability of the vacancies and to adopt a particular procedure for making recruitments or select or reject candidates on the basis of performance and on merit and other similar factors.
iv. Rule is made absolute in these terms. No order as to costs.