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Indian Bank, Represented by its General Manager, Chennai v/s The Presiding Officer, Central Government Industrial Tribunal, Chennai & Another


Company & Directors' Information:- V. K. INDUSTRIAL CORPORATION LIMITED [Active] CIN = U27100MH2004PLC149538

Company & Directors' Information:- R K INDUSTRIAL CORPORATION LIMITED [Strike Off] CIN = U29300PB1996PLC017836

Company & Directors' Information:- V T INDUSTRIAL CORPORATION LIMITED [Active] CIN = U74990TN2010PLC078041

Company & Directors' Information:- B P INDUSTRIAL CORPN. PVT LTD [Active] CIN = U15312UP1973PTC087037

Company & Directors' Information:- A V A INDUSTRIAL CORPN PRIVATE LIMITED [Strike Off] CIN = U29191TZ1956PTC000261

Company & Directors' Information:- THE INDUSTRIAL CORPORATION PRIVATE LIMITED [Active] CIN = U15420MH1921PTC000947

Company & Directors' Information:- GENERAL BANK PRIVATE LIMITED [Dissolved] CIN = U93090TN1935PTC000845

Company & Directors' Information:- D D INDUSTRIAL PRIVATE LIMITED [Active] CIN = U34102DL2006PTC156978

Company & Directors' Information:- INDUSTRIAL BANK LIMITED [Dissolved] CIN = U65191KL1956PLC000452

Company & Directors' Information:- A K INDUSTRIAL CORPORATION (INDIA) PRIVATE LIMITED [Active] CIN = U29130PN2014PTC151053

Company & Directors' Information:- THE INDUSTRIAL CORPORATION LIMITED [Strike Off] CIN = U00804KA1948PLC000529

Company & Directors' Information:- CENTRAL BANK OF INDIA LIMITED [Active] CIN = U99999MH1911PTC000337

Company & Directors' Information:- INDIAN INDUSTRIAL CORPORATION LTD. [Dissolved] CIN = U99999MH1920PTC000812

Company & Directors' Information:- GENERAL INDUSTRIAL BANK LIMITED [Not available for efiling] CIN = U99999MH1934PTC002176

Company & Directors' Information:- CENTRAL INDUSTRIAL CORPORATION LIMITED [Dissolved] CIN = U99999MH1946PLC010721

    W.P. No. 24963 of 2004 & W.P.M.P. No. 30356 of 2004

    Decided On, 18 September 2019

    At, High Court of Judicature at Madras

    By, THE HONOURABLE MR. JUSTICE S.M. SUBRAMANIAM

    For the Petitioner: Rita Chandrasekaran for M/s. Aiyar & Dolia, Advocates. For the Respondents: R1, Tribunal, R2, Revathi for L.N. Praghasham, Advocates.



Judgment Text

(Prayer : Writ Petition filed under Article 226 of the Constitution of India praying for issuance of a Writ of Certiorari, calling for the records pertaining to the Award passed by the first respondent in I.D.No.612 of 2001 dated 16.02.2004 (received by the petitioner on 12.07.2004) and quash the same.)

1. The Award of the Central Government Industrial Tribunal dated 16.02.2004 passed in I.D. No.612 of 2001 is under challenge in the present writ petition.

2. The writ petitioner is the Indian Bank. The writ petitioner-Bank is extending loan against the security of gold jewel primarily for agricultural purpose and also for non-agricultural purposes by Rural/Semi-Urban Branches situated in various parts of the country. The writ petitioner-Bank thought it fit not to have the Goldsmiths on contract basis. Contrarily, the writ petitioner-Bank empanelled the Goldsmiths for the limited purpose of ascertaining the weight, quality, purity and market value of the security.

3. In this regard, the writ petitioner-Bank requires the professional opinion of a Goldsmith. Two or three Goldsmiths are empanelled in each Branch for the purpose of granting jewel loans. The names and addresses of the Goldsmiths are displayed in the Notice Board. Any prospective customer intending to raise a loan by pledging gold jewels obtains a certificate from the Goldsmith. The charges payable for such professional certificate is paid by the customer directly to the concerned Goldsmith. For this limited purpose of seeking professional opinion, the writ petitioner-Bank identified certain Goldsmiths and empanelled them as jewel appraisers. Thus, the panel of jewel appraisers are free to do their own profession. There is no specification/restriction on age, qualification etc., for the empanelment of jewel appraisers.

4. In this regard, the Head Office of the writ petitioner-Bank issued Circular dated 25.04.1983 to all its Branches across the country in respect of empanelment of jewel appraisers. As per the Circular, applications were received from the qualified/reputed Goldsmiths for being empanelled as approved valuers and under the said applications, the applicants undertook to receive fee for appraisal/ valuation from the intending borrowers. The fees for valuation/ appraisal is borne by the intending borrowers and paid by them directly to the jewel appraisers and under no circumstances, the fees to the appraiser/valuer is not debited to the loan account and it is not passed through any other books of the Bank. Under those circumstances, it is contended that the second respondent-workman was not an employee of the writ petitioner-Bank. There was no employer-employee relationship existed between the writ petitioner-Bank and the second respondent-workman and therefore, the very dispute adjudicated by the first respondent was without jurisdiction.

5. In order to establish the said contention, the learned counsel for the writ petitioner solicited the attention of this Court in respect of the Circular issued by the writ petitioner-Bank on 25th April 1983 and clause (4) of the said Circular is extracted hereunder:-

“4. The fees for the appraisers/ valuers should be borne by the intending borrower and paid by him directly and under no circumstances, the fees to the appraiser/ valuer should be debited to the loan account. It should not also be passed through any other books of the bank.”

6. The second respondent-workman was removed from the empanelment on account of the fact that he made an attempt to assist the borrower for the purpose of pledging the spurious jewels. The Branch Manager, who was vigilant, found the intention and thereafter the second respondent-workman was removed from the empanelment.

7. Under those circumstances, the second respondent-workman raised a dispute by stating that he was terminated from service. The Tribunal proceeded on the pretext that the second respondent-workman was an employee of the writ petitioner-Bank and accordingly found that no enquiry was conducted and therefore, the termination of the second respondent-workman was null and void and consequently ordered for reinstatement with backwages.

8. Undoubtedly, the permanent employee of the writ petitioner-Bank cannot be terminated without conducting any enquiry or without complying with the principles of natural justice. Thus, the finding of the Tribunal in respect of the employee is correct. However, in the present case, the facts are entirely different. The second respondent-workman is not an employee of the writ petitioner-Bank. Only if an order of appointment is issued or the second respondent-workman is able to establish that he was engaged by the writ petitioner-Bank and the Bank paid the wages, then alone the Court can come to the conclusion that the employer-employee relationship exists between the writ petitioner-Bank and the second respondent-workman and accordingly, an adjudication can be proceeded in respect of any such termination. In the absence of establishing the employer-employee relationship, no adjudication can be entertained under the provisions of the Industrial Disputes Act, 1947.

9. In the present case on hand, the writ petitioner is able to establish that pursuant to Circular of the Head Office of the writ petitioner-Bank, these jewel appraisers are empanelled and they are free to do their profession of their choice and there is no terms and conditions for such engagements. Further, a commission is also paid by the prospective borrowers and the writ petitioner-Bank is not paying any wages to these empanelled jewel appraisers.

10. This being the factum, this Court is of the opinion that the Tribunal has committed the basic error in entertaining the dispute without even considering the fact that there was no employee-employer relationship subsists between the writ petitioner-Bank and the second respondent-workman and the second respondent-workman was not engaged by the writ petitioner-Bank.

11. In this regard, it is relevant to cite the judgment of the Hon'ble Supreme Court of India in the case of Indian Overseas Bank vs. Workmen [(2006) 3 SCC 729] and the relevant paragraph-14 is extracted hereunder:-

“14. A few distinguishing facts need to be noted. In Indian Bank case [ ID No. 25 of 1977. Disposed of by a Single Judge of the High Court in WP No. 1947 of 1980, (1986) 2 MLJ 59. The writ appeals thereagainst, WAs Nos. 330 and 350 of 1986 were dismissed on 3-5-1990. SLP No. 100054 of 1990 thereagainst was dismissed at the admission stage on 10-10-1990. See para 3 of G.M., Indian Overseas Bank v. Presiding Officer, Industrial Tribunal, (2005) 1 LLJ 623 (Mad).] 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 [ ID No. 25 of 1977. Disposed of by a Single Judge of the High Court in WP No. 1947 of 1980, (1986) 2 MLJ 59. The writ appeals thereagainst, WAs Nos. 330 and 350 of 1986 were dismissed on 3-5-1990. SLP No. 100054 of 1990 thereagainst was dismissed at the admission stage on 10-10-1990. See para 3 of G.M., Indian Overseas Bank v. Presiding Officer, Industrial Tribunal, (2005) 1 LLJ 623 (Mad).] 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 [ ID No. 25 of 1977. Disposed of by a Single Judge of the High Court in WP No. 1947 of 1980, (1986) 2 MLJ 59. The writ appeals thereagainst, WAs Nos. 330 and 350 of 1986 were dismissed on 3-5-1990. SLP No. 100054 of 1990 thereagainst was dismissed at the admission stage on 10-10-1990. See para 3 of G.M., Indian Overseas Bank v. Presiding Officer, Industrial Tribunal, (2005) 1 LLJ 623 (Mad).] 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 [ ID No. 25 of 1977. Disposed of by a Single Judge of the High Cou

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rt in WP No. 1947 of 1980, (1986) 2 MLJ 59. The writ appeals thereagainst, WAs Nos. 330 and 350 of 1986 were dismissed on 3-5-1990. SLP No. 100054 of 1990 thereagainst was dismissed at the admission stage on 10-10-1990. See para 3 of G.M., Indian Overseas Bank v. Presiding Officer, Industrial Tribunal, (2005) 1 LLJ 623 (Mad).] 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.” 12. This being the factum, this Court has no hesitation in coming to the conclusion that the Award of the Tribunal is perverse and infirm. Consequently, the Award of the Tribunal dated 16.02.2004 passed in I.D.No.612 of 2001 is quashed and accordingly, the writ petition stands allowed. However, there shall be no order as to costs. Consequently, connected miscellaneous petition is closed.
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