RADHA RAMAN SAMANTAversusBANK OF INDIA AND ORS.

A                       RADHA RAMAN SAMANTA
                                      v.
                        BANK OF INDIA AND ORS.

                            DECEMBER 19, 2003

B              [S. RAJENDRA BABU AND RUMA PAL, JJ.]

        Constitution of India, 1950: Article 226.

          Writ petition-Power of High Courts-Held: Power can be invoked
c   even for enforcement of a legal right.

        Writ petition-Scope and ambit of---Undisputed facts-Examination         •
    of-Held: Is not debarred in a proceeding under Art. 226.

         Labour Law:
D
         Industrial Disputes Act, 1947: Section 25C Explanation.

         Badli workman-Definition-Held: Is limited only to the purposes of
    S. 25C Expln.

E        The appellant was appointed as a Badli Subordinate Staff/sepoy
    against one permanent vacancy in one of the branches of the respond-        ..
    ent-Bank and worked there for about 492 days. Subsequently, the
    appellant was asked not to work anymore.

         Being aggrieved the appellant filed a writ petition before the High
F Court for a direction to the respondent-Bank for absorbing him as a
    regular employee. Single Judge allowed the writ petition. However,
    Division Bench sent the writ petition back to the Single Judge to
    determine whether the appellant was a Badli worker or not.

G        The single Judge found that the appellant was a Badli worker who
    had rendered continuous service for 240 days in a calendar year and
    directed the respondent to absorb him. However, the Division Bench,
    in appeal, held that the appellant should have availed himself of the
    alternative remedy under the Industrial Disputes Act, 1947 and,            ""'
H   therefore, dismissed the writ petition. Hence the appeal.
                                      1172
                 R.R. SAMANT Av. BANK OF INDIA                        1173

     Allowing the appeal, the Court                                           A
      HELD : 1.1. On the earlier occasion when the matter was
considered by the Division Bench, the respondent-Bank did not raise
any issue of alternative remedy or any question relating to non-
maintainability of the writ petition. When such issues might and ought B
to have been raised but bad not been done sc, it must be taken that
the Division Bench had rejected such contentions and the order of the
Division Bench remanding the matter to the single Judge was not
carried in appeal and becaine final. Therefore, the single Judge was
bound to address only on one issue upon which the matter had been
remanded. Thus, the Division Bench could not have overlooked these C
facts in the appeal arising from the order of the single Judge on the
second occasion after remand and need not have gone into the question
as to whether the writ petition could have been entertained at all or
not. [1177-F-H; 1178-A)

     1.2. High Courts have often exercised their power under Article
                                                                              D
226 of the Constitution for enforcement of a legal right. It is, therefore,
open to the single Judge to issue an appropriate direction to the
respondent-Bank, if otherwise justifiable on facts. [1178-B-C)

     Style (Dress Land) v. Union Territory Chandigarh, (1999) 7 sec 89, E
relied on.

     2. It is not improper for the single Judge to look into undisputed
documents and to infer as to the status of employment of the appellant.
Examination of undisputed facts is not debarred in a proceeding under F
Article 226 of the Constitution. [1178-E-F)

     KK Kochunni v. State of Madras, (1959) 2 Supp. SCR 316; Jkram
Hussain, Mohd v. State of UP., [1954) 5 SCR 56 and Govt. of A.P. v.
Karri Chinna Venkata Reddy, (1995] Supp. 1 SCC 462, relied on.

     3. The definition of Badli workman under the Explanation to
                                                                              G
Section 25C of the Industrial Disputes Act, 1947 is limited to the
purposes of that Section and is not necessarily applicable to the facts
arising in the present case. [1179-C-D]

     Lalappa Lingappa v. Laxmi Vishnu Textile Mills, [1981] 2 sec 238 H
    1174                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A and Budge Budge Jute Mills Co. Ltd. v. Workman, (1970) 1 LLJ 222,
    referred to.

          4. Nomenclature of the appellant's work profile may change, but
    it is clear that the appellant had rendered services in a vacancy of a
B   temporary post for more than 240 days. This is sufficient to treat the
    appellant as a Radii for the purpose of absorption. Hence, he has a legal
    right to be absorbed in the respondent-Bank. (1179-F-G]

           Gujarat Agricultural University v. Rathod Labhu Bechar, [2001] 3
    sec 574, referred to.
c
         CIVIL APPELLATE JURISDICTION : Civil Appeal No. 2063 of
    2000.

         From the Judgment and Order dated 26.4.99 of the Calcutta High
D   Court in M.A.T. No. 3014 of 1998.

           S. Muralidhar for the Appellant.

        K. Venugopal, Ms. Nina Gupta, Uday Gupta, Ms. Arpita Mahajan and
    Ms. Praneeta Sharma for the Respondents.
E
           The Judgment of the Court was delivered by

          RAJENDRA BABU, J. : Whether the Appellant is a Badli worker
    and, if so, is he entitled to be absorbed in the Respondent bank is the matter
F   for judgment in this case.

          Appellant's case is as follows. That he was appointed as a Badli
    Subordinate Staff/Sepoy against one permanent vacancy in the Shyamsunder
    Branch of the Bank of India on 30.l 0.1988 and worked there up to
    16.04.1991, for about 492 days: On 16.4.1991 the Branch Manager of the
G   bank asked him not to work anymore. Later he made a representation to
    the Zonal Manager requesting to appoint him as a regular employee in the
    bank by quoting the circular no. XVIIV90/20 dated 7th September 1990
    of the Federation of the Bank which referred to absorption ofBad\i Sepoys
    and the bipartite agreement entered between management and Union
H   regarding the same which provides that:
         R.R. SAMANTA v. BANK OF INDIA [RAJENDRA BABU, J.] 1175
·~           " ... a Badli worker who has more than 240 days worked in the A
             permanent vacancy after February 1988 in a block of 12 months
             would be absorbed against clear vacancy as and when they arise."

           Since he did not receive any reply from the Bank, he moved a writ
     petition before the High Court seeking a direction to the bank for absorbing B
     him as a regular employee.                              ·

           Stand maintained by the Respondent bank before the High Court in
     its affidavit-in-opposition inter alia is that the Appellant herein was only
     working as a coolie and not as a Badli Sepoy, therefore he is not entitled
     to be considered for absorption.                                             C
          Vide order dated 14/3/1996 the learned single Judge of the High
     Court allowed the writ petition and directed the bank to absorb him. This
     decision was challenged in Appeal before the Division Bench. The
     Division Bench (speaking through V.N. Khare, Chief Justice (as His D
     Lordship then was)] allowed the appeal in the following terms :

              "We have looked into the records and the affidavit-in-opposition
              of the Bank authorities and find that it was the definite case of
              the Bank authorities, appellants herein, that the writ petitioner was
              not a Badli worker and at any rate was not entitled to be absorbed E
              in service. Learned single Judge while allowing the application
              did not consider that aspect of the matter. Learned single Judge
              ought to have first found out the status of the writ petitioner as
              to in what capacity he worked with the bank. In the absence of
              such a finding, the impugned order/judgment of the learned single F
              Judge deserves to be set aside. We accordingly set aside the
              impugned order/judgment.

              We send the writ petition back to the learned single Judge to
              dispose of the same after consideration of the stand taken by the
              Bank in its affidavit-in-opposition, with a direction to dispose of G
              the same as early as possible."

                                                          (Emphasis Supplied)

          Thus the matter again came back before a single Judge. After H
    1176              SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R.
A appreciating the various documents the learned single Judge arrived at the
    conclusion that the Appellant was working with the Bank during the
    relevant period by holding that :

            "Pursuant to the order passed· by this Court as quoted above
            various documents was produced. Inspection was taken and note
B           thereof, was prepared and signed jointly by both learned lawyers.
            It appears to me from the contents of the joint notes that the
            petitioner was engaged by the Bank in order to accept his services
            in place ofa permanent sub-staff He was paid salaries. Moreover
            when the petitioner made representation by forwarding two letters
c           being annexure 'A' and 'B', the respondent Bank did not deny
            nor give a reply to the same. The writ petitioner has also annexed
            various documents written by third parties evidencing the peti-
            tioner's engagement in the Bank in the capacity of the sub-staff
            These documents have also got corroborative value of the fact of
D           the petitioner's service being rendered in the capacit'J of the sub-
            staff.

            On thl! facts and circumstances of this case I am of the view that
            the petitioner has rendered his services more than 240 days in a
            particular calendar year. At least the petitioner rendered continu-
E           ous services for 240 days during the period of January 1990 to
            December 1990. So the petitioner in terms of the aforesaid joint
            agreement and/or norms and/or policies being item no. 5 has
            rendered services more than 240 days of Badli service after 10th
            February 1988 in a block of 12 months of a calendar year. So I
F           declare that the petitioner is entitled to be absorbed as having
            fulfilled the aforesaid criteria and/or eligibilities."

                                                          (Emphasis supplied)

G        Consequently, the learned single Judge directed the bank to absorb
    the Appellant herein. This order was carried in appeal before the Division
    Bench.

         Based ·on certain conclusions arrived at by the learned Division
    Bench, the Appeal bearing MAT No. 3014 of 1998 was allowed on
H   24.02.1999. The Court found that:
        R.R. SAMANTA v. BANK OF INDIA [RAJENDRA BABU, J.] 1177
            "The very fact that the learned Judge himself has used the words A
            'it appears to me' goes on to show that nothing had been placed
            on record for the purpose of proving that the 1st Respondent was
            appointed as a Badli Sepoy. In any event such a question could
            not have been adjudicated upon in a writ proceeding."

         Thereafter the learned Division Bench ruled that the bipartite agree- B
    ment based on which the appellant herein based his claims could not be
    enforced by filing a writ application and held :

            " ... The appellant being a 'State' within the meaning of Article
            12 of the Constitution of India, a writ petition could have been C
            entertained only if the 1st respondent proved violation of any of
            his fundamental rights guaranteed under Part III of the Constitu-
            tion of India.... .If any right has been accrned in favour of a
            workman under the provision of the Industrial Disputes Act, the
            proper course for a writ court would be to refuse to exercise its D
            jurisdiction and ask the parties to avail the statutory alternative
             remedy by raising an industrial dispute which is ·a more speedy
            and efficacious one .... "

         Therefore the learned Division Bench went on to quote a catena of
    authorities to hold that regularization is not a proper mode of appointment. E
    In result, the order of the learned single Judge was 'reversed.

         This judgment of the Division Bench is impugned before us.

          On the earlier occasion when the matter was considered by the
    Division Bench the respondent-Bank did not raise any issue of alternative F
    remedy or any question relating to non-maintainability of the writ petition.
    We may also notice that when such issues might and ought to have been
    raised but had not been done so, it must be taken that the Division Bench
    had rejected such contentions and the order of the Division Bench
    remanding the matter to the learned Single Judge was not carried in appeal G
    and became final. Therefore, the learned single Judge was bound to address
    only on one issue upon which the matter had been remanded. Thus, the


-   Division Bench could not have overlooked these facts in the appeal arising
    from the order of the learned single Judge on· the second occasion after
    remand and need not have gone into the question as to whether the writ H
     1178                SUPREME COURT REPORTS [2003] SUPP. 6 S.C.R .

. A petition could have been entertained at all or not. Therefore, we are of the
     view that the High Court could not have overlooked these facts and
     interfere with the order of the learned single Judge.

           It is too elementary to state that powers under Article 226 of the
 B   Constitution could be exercised forthe enforcement of fundamental Rights
     available under Part III of the Constitution, and also for any other purpose.
     High Courts have often exercised their power under Article 226 of the
     Constitution for enforcement of a legal right. It is, therefore, open to the
     learned single Judge to issue an appropriate direction to the respondent-
     Bank, if otherwise justifiable on facts. To make matters clear, We may cite
 C   Style (Dress Land) v. Union Territory Chandigarh, [1999) 7 SCC 89, in
     which this Court held that :

               "Actfon of renewability should be gauged not on nature of
               function but public nature of the body exercising that function and
D              such action shall be open to judicial review even if it pertains to
               the contractual field."

                                                            (Emphasis supplied).

            In this case, pursuant to the direction of the Division Bench in FMAT
 E No. 1119 of 1996, the learned single Judge looked into the relevant
     documents produced by the Respondent bank and formed an opinion that
     the Appellant herein was working with the bank during the relevant period.
     It is also not improper for the learned single Judge to look into undisputed
     documents and to infer as to the status of employment of the appellant.
 F   Examination of undisputed facts is not debarred in a proceeding under
     Article 226 of the Constitution vide K.K. Kochunni v. State of Madras,
     [1959) 2 Supp. SCR 316; Ikram Hvssain, Mohd. v. State of UP., [1964]
     4 SCR 86; Govt. of A.P. v. Karri Chinna Venkata Reddy, [1995) Supp.
     1 SCC 462. Therefore, the procedure adopted by the learned single Judge
     pursuant to the direction of the Division Bench is perfectly within the limits
 G   of its powers under Article 226 of the Constitution.

          Indeed, the learned single Judge has recorded that the counsel for the
     respondent-Bank had "in no uncertain terms stated ..... that ifthe petitioner
     (appellant before us) is able to establish his case on engagement as a badli
 H   Sepoy, he is entitled to be absorbed on the strength of.... norms and/or
     R.R. SAMANTA v. BANK OF INDIA [RAJENDRA BABU, J.] 1179

policies settled and agreed by the respondent-Bank with the Employees' A
Union as recorded in the aforesaid circular".

      In this context, the contrary view expressed by the Division Bench
in the impugned judgment is based on a premise of law not applicable to
the facts of the case in hand and en that basis should not have reversed
the order of the learned single Judge. Hence, the impugned judgment is B
not sustainable neither in Jaw nbr on facts and the same is liable to be set
aside.

      In the instant case the question for consideration is whether the
appellant is a Badli worker or not. Rival argument advanced before us is C
that he will not come under the Explanation of Bad Ii workman to Section
l5-C of the Industrial Disputes -Act. That definition of Badli workman
under the Explanation is limited only to the purposes of Section 25-C of
the Industrial Disputes Act and not necessarily applicable to the facts
arising in the present case. In Lalappa Lingappa v. Laxmi Vishnu Textile D
Mills, [1981) 2 SCC 238, this Court held that" ... The badli employees are
nothing but substitutes. They are like 'spare men' who are not 'employed'
while waiting for a job ..... " In Budge Budge Jute Mills Co. Ltd. v.
Workman, (1970) I LLJ 222, it was held that " .... A badli or a special badli
is a workman who is appointed in a vacant post of a permanent workman
or a probationary who is temporarily absent...". Thus a Badli workman only E
means a person who is employed as a casual workman who is working in
place of another. By virtue of bipartite agreement published in the circular
No. XVIII/90/20 dated 7th September 1990 of the Federation of the Bank,
such a Badli worker is entitled to be absorbed if he completes 240 days
of badli service in a block of twelve months or a calendar year after 10th F
February 1988. Based on the conclusion arrived at by the learned single
Judge after considering the relevant documents, the fact of Appellant's
service for the required period cannot be disputed. Nomenclature of his
work profile may change, but it is clear that he rendered services in a
vacancy of a temporary post for more than 240 days. This is sufficient to
treat him as a Badli for the purpose of absorption. Hern;:e, he has a legal' G
right to be absorbed in the Respondent bank by virtue of the bipartite
agreement. (See generally Gujarat Agricultural University v. Rathod
Labhu Bechar & Others, [2001] 3 SCC 574). Order made by the learned
single Judge deserves to be affirmed in reversal of the order of the Division
Bench.                                                                        I-I
                                                                                   >-




    1180               SUPREME COURT REPORTS (2003] SUPP. 6 S.C.R.

A         The learned single Judge had directed the creation of a supernumerary
    post if no posts were available in any branch of the respondent-Bank. The
    appellant was directed to be regularised in service against such post with
    effect from the date of joining. Two months time was granted for this
    purpose.
B         At this stage, the learned counsel for the Respondent-Bank submitted
    that now the Bank has taken a policy decision to down size its work force
    by reducing the number of new recruits and also offering Voluntary
    Retirement ~cheme to the existing employees. It would not be proper to
    give a direction to absorb an additional employee against the general policy
C   of the Bank. In the circumstances, in modification of the relief granted by
    the learned single Judge, we direct that the respondent-Bank shall absorb
    the appellant in a vacant post or, in the absence of any vacancy in an
    appropriate post, compensate the appellant monetarily. The compensation
    shall be calculated in accordance with Voluntary Retirement Scheme of the
D   respondent-Bank on the basis that the appellant had been regularised in
    service on Ist January 1999 and voluntarily retired from such service from
    the date of this judgment. Either of the benefits must be granted within two
    months from today.

           The appeal stands allowed accordingly.
E
    v.s.s.                                                     Appeal allowed.