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Petitioner: IKRAM BARI VS Respondent: NATIONAL BANK OF PAKISTANHonorable Justice FAQIR MUHAMMAD KHOKHARMuhammad Akram Sh. Senior,Kh. Muhammad Farooq
2005 P L C (C
2005 P L C (C.S.) 915
[Supreme Court of Pakistan]
Present: Nazim Hussain Siddiqui, C.J., Abdul Hameed Dogar and Faqir Muhammad Khokhar, JJ
IKRAM BARI and others
Versus
NATIONAL BANK OF PAKISTAN through President and others
Civil Petitions Nos. 1772, 1789 to 1795, 1839 to 1843, 1884 to 1896, 1901, 1909 to 1942, 1944 to 1946, 1991 to 1998, 2002, 2021 to 2080, 2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2164, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2188 to 2432, 2449 to 2520, 2530 and 2606 of 2003, decided on 21st September, 2004.
(On appeal from the judgment, dated 17-7-2003 of the Federal Service Tribunal, passed in Appeals Nos. 98(Q)CW/2002 to 122(Q)CW/2002, 479 to 513, 520 to 560, 837, 838, 861 to 873, 1003 to 1006, 1013 to 1015, 1020 to 1029, 1030, 1031, 1032, 1038, 1041, 1067 to 1074 to 1079, 1083 to 1089, 1090 to 1093, 1094 to 1099, 1100 to 1106, 1107 to 1126, 1127 to 1133, 1134, 1136, 1140 to 1151, 1163 to 1169, 1184, 1185, 1194 to 1196, 1200 to 1204, 1209 to 1232, 1240 to 1262, 1270, 1271, 1318, 1319, 1416 to 1422, 1424 to 1427, 1435, 1437 to 1453, 1462 to 1464 to 1466-R/CW/2002)
(a) Service Tribunals Act (LXX of 1973)-----
---Ss. 2-A & 4---Termination from service---Godown staff/daily wages employees---Status---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/ loanees---Validity---As the employees were not selected or recommended by the borrowers/loanees, therefore, on no principle of law and equity, they could be treated to be the employees of the borrowers/loanees---If the salaries of temporary employees / godown staff or the daily wages employees were debited to the borrowers account that would make no difference since for all practical purposes and legal consequences the employees were placed under the administrative control of the bank.
(b) Islamic jurisprudence---
--Islamic State---Obligations---Islamic Welfare State is under obligation to establish a society, which is free from exploitation wherein social and economic justice is guaranteed to its citizens.
(c) Industrial dispute-----
----Employer and employees---Bargaining strength---Termination from service---Godown staff / daily wages employees---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/loanees---Validity---No equilibrium of bargaining strength between employer and employees existed---Manner in which the employees had been dealt with by the bank was a fraud on the statute.
(d) Constitution of Pakistan (1973)-----
----Arts. 2-A, 3 & 38---Public administration---Doctrine of good governance---Applicability---Objectives Resolution, by virtue of Art.2-A of the Constitution, has been made substantive part of the Constitution which unequivocally enjoined that in State of Pakistan the principles of equality, social and economic justice as enunciated by Islam would be fully observed which would be guaranteed as fundamental rights---Principles of policy contained in Art.38 of the Constitution also provide that the State should secure the well-being of the people by raising their standards of living and by ensuring equitable adjustment of rights between employer and employees and provide for all citizens, within the available resources of the Country, facilities for work and adequate livelihood and reduce disparity in income and earnings of individuals---State is obliged under Art.3 of the Constitution, to ensure the elimination of all forms of exploitation and gradual fulfillment of the fundamental principle, from each according to his ability, to each according to his work.
(e) Service Tribunals Act (LXX of 1973)---
----Ss. 2-A & 4---General Clauses Act (X of 1897), S.24-A---Constitution of Pakistan (1973), Art.212(3)---Termination from service---Godown staff / daily wages employees---Reinstatement---Back benefits, grant of---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the bank yet their salaries were being paid by the borrowers/loanees---Validity---Supreme Court found it difficult to countenance the approach of the bank that the temporary godown staff and the daily wages employees should be continued to be governed on disgraceful terms and conditions of service for indefinite period---Bank was required under the provisions of S.24-A of General Clauses Act, 1897, to act reasonably, fairly and justly---Any employee being jobless and in fear of being shown the door, had no option but to accept and continue with the appointment on whatever conditions it was offered by the bank---Service Tribunal had rightly imposed a condition of three years length of service with not more than fifteen days break between the consecutive appointments and termination of service for regularization of service of employees---Such conditions were reasonable and were also in line with the policy decisions taken by the bank itself from time to time---Employees had woken up from deep slumber of more than a decade to seek redress of their grievances, therefore, it would be unfair and inequitable to grant them monitory back-benefits of service from the dates of their initial appointments---Supreme Court directed the bank to issue appointment letters to the employees and previous service rendered by them with the bank would be counted towards retirement/pensionary benefits---Appeal was allowed.
Managing Director, Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas and others PLD 2003 SC 724 = 2003 PLC (C.S.) 796; Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82; The Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176; Federation of Pakistan v. Raees Khan 1993 SCMR 609; Abdul Majeed Sheikh v. Mushafee Ahmed PLD 1965 SC 208; Hameed Akhter Niazi v. The Secretary, Establishment Division, Government of Pakistan and others 1996 SCMR 1185; Sh. Muhammad Aslam v. Majeed Nizami, Editor-in-Chief "The Nation" and "Nawa-i-Waqt" and others PLD 2002 SC 514; Syed Imran Raza Zaidi v. Superintending Engineer, Public Health Engineering Circle, Gujranwala-I, v. Government of the Punjab through Secretary, General Administration and Information Department, Punjab Secretariat, Lahore and 2 others 1996 SCMR 645; Muhammad Shafi v. Mushtaq Ahmed 1996 SCMR 856; Ali Muhammad v. Hussain Bakhsh PLD 1976 SC 37; Syed Ali Abbas and others v. Bishan Singh and others PLD 1967 SC 294; Ch. Altaf Hussain v. Chief Settlement Commissioner PLD 1965 SC 68; Malik Khawaja Muhammad and 24 others v. Marduman Babar Kahol and 29 others 1987 SCMR 1543; Mst. Rehmat Bibi and others v. Punnu Khan and others 1986 SCMR 962; Allandino v. Fakir Muhammad and another PLD 1969 SC 582; Federal Bank for Cooperatives v. Ehsan Muhammad 2004 PLC (C,S.) 25; Federation of Pakistan and another v. Hashim Shah Qureshi 1987 SCMR 156; Muhammad Naseem Ahmad and 18 others v. Miss Azra Feroz Bakht and 58 others PLD 1968 SC 37; Government of Pakistan through establishment Division, Islamabad and 7 others v. Hameed Akhtar Niazi PLD 2003 SC 110 = 2003 PLC (C.S.) 212; Muhammad Sohail and 2 others v. Government of N.-W.F.P. and others 1996 SCMR 218; M.A. Rashid Rana v. Secretary Home, Government of Punjab and 18 others 1996 SCMR 1145; Pir Bakhsh v. The Chairman, Allotment Committee and others PLD 1987 SC 145; Dr. Anwar Ali Sahto and others v. Federation of Pakistan and others PLD 2002 SC 101; WAPDA and others v. Khanimullah and others 2000 SCMR 879; Black's Law Dictionary Revised 4th Edit. (1968) p.1518; State Bank of India v. Sliri N. Sundara Money AIR 1976 SC 1111; Marubeni Power Development Project, Karachi v. Gulzar Hussain Shah 1998 PLC 249; General Tyre & Rubber Company of Pakistan Limited, Karachi v. Sindh Labour Appellate Tribunal, Karachi and another 1992 PLC (Labour) 1028; Nasir Jamal and 23 others v. Pak Suzuki Motor Company Limited and 3 others 2000 PLC (Labour) 52 (Kar.); Muhammad Yaqoob v. The Punjab Labour Court No.1 and 5 others 1990 SCMR 1539; Sui Northern Gas Pipelines Ltd. v. Abdul Sattar and 2 others 1996 PLC 162 (Lah.); Syed Aftab Ahmed and others v. K.E.S.C. and others 1999 SCMR 197; Abdul Sattar and another v. Sui Northern Gas Pipelines Limited and others 2001 SCMR 1935; Muhammad Riaz Khan v. Government of N.-W.F.P. and another PLD 1997 SC 397; S. Sharif Ahmad Hashmi v. Chairman, Screening Committee, Lahore and another 1978 SCMR 367, Zafar Iqbal Khan v. Pakistan Agricultural Research Council, Islamabad and others 2003 SCMR 1471; Muhammad Mumtaz and others v. Muhammad Sher 1988 SCMR 1389; Sheikh Muhammad Saleem v. Faiz Ahmad PLD 2003 SC 628; Hakim Muhammad Buta and another v. Habib Ahmad and others PLD 1985 SC 153; Mir Muhammad Khan v. Secretary to the Government and others 1997 SCMR 1477; Pakistan v. Public at Large PLD 1987 SC 304 and Habibullah v. Government of the Punjab and 5 others PLD 1980 Lah. 337 ref.
(f) Judgment---
----Judgment in rem and judgment in personam---Case-law cited.
Federation of Pakistan through Secretary, Ministry of Education, Government of Pakistan, Islamabad and others v. Qamar Hussain Bhatti 2004 PLC (C.S.) 34; Muhammad Sohail and 2 others v. Government of N.-W.F.P and others 1996 SCMR 218; M.A. Rashid Rana v. Secretary Home, Government of Punjab 1996 SCMR 1145; Pir Bakhsh's case PLD 1983 SC 684; Farokh Homi Irani v. Nargis Farokh Irani PLD 1963 Kar. 567; Mst. Muni v. Habib Khan PLD 1956 Lah. 403 and State of Bihar and others v. Sri Radha Krishna Singh and others AIR 1983 SC 684 rel.
(g) Service Tribunals Act (LXX of 1973)----
---Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Termination from service---Time-barred appeal---Plea of void order---Limitation---Principle---Service Tribunal dismissed the appeal being barred by limitation---Plea raised by the employees was that the order of termination was a void order against which there was no period of limitation---Validity---No rule of universal application was that in all cases of void orders, question of limitation was to be treated a mere technicality and a litigant was entitled to invoke the jurisdiction of a Court or Tribunal of competent jurisdiction at his sweet will at any time without showing any exceptional circumstances for the delay---Supreme Court declined to interfere with the order passed by Service Tribunal---Leave to appeal was refused.
Fazal Elahi Siddiqui v. Pakistan through Secretary, Establishment Division and 2 others PLD 1990 SC 692 and Abdul Wahid v. Chairman, Central Board of Revenue, Islamabad and another 1998 SCMR 882 rel.
(h) Service Tribunals Act (LXX of 1973)-----
----Ss. 2-A & 4---Constitution of Pakistan (1973), Art.212(3)---Termination from service---Godown staff/daily wages employees---Proceedings before National Industrial Relations Commission---Employees had been working with bank for the past many years on daily wages in various categories---Bank had terminated their services on the ground that although the employees were appointed by the Bank yet their salaries were being paid by the borrowers/loanees---Employees had been pursuing their cases before National Industrial Relations Commission and their appeals were dismissed by Service Tribunal being barred by limitation---Validity---Controversy as to the application of S.2-A of Service Tribunals Act, 1973, remained in a state of fluidity for a considerable period of time---Service Tribunal itself had declined to exercise its jurisdiction in old cases and the matter was resolved by Supreme Court---As the termination orders were passed on 2-7-2002, 30-4-2002 and 29-2-2002 and appeals before Service Tribunal were filed on 6-7-2002, 8-6-2002 and 29-4-2002 after filing departmental appeals, the Service Tribunal was not justified to refuse to condone the delay and to dismiss the appeals of the employees as time-barred---Judgment of the Service Tribunal was set aside and the petition for leave to appeal was converted into appeal---Supreme Court reinstated the employees in service with back-benefits from the date of their termination---Appeal was allowed.
Syed Aftab Ahmed v. K.E.S.C. 1999 SCMR 197; Muhammad Afzal v. Karachi Electric Supply Corporation and 2 others 1999 SCMR 92; Muhammad Yaqub v. Pakistan Petroleum Ltd. and another 2000 SCMR 830 and Imtiaz Butt and others v. Chairman, Pakistan International Airlines Corporation, Karachi 2000 SCMR 944 rel.
Ch. Ghulam Qadir, Advocate Supreme Court for Petitioners (in C.Ps. Nos. 1772, 1789 to 1795, 1839, 1840 to 1843, 1884 to 1896, 1901 and 1910 to 1912/2003).
Hafiz Tariq Nasim, Advocate Supreme Court for Petitioners (in C.Ps. Nos.1916 to 1942, 1944 to 1946, 1991-1998, 2074, 2077, 2080, 2167 and 2171 to 2174/2003).
Syed Iftihkar Hussain Gillani, Senior Advocate Supreme Court and Mehr Khan Malik, Advocate-on-Record for Petitioners (in C.Ps. Nos.2002, 2084 to 2095, 2099 to 2121, 2130, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003).
Ehsan-ul-Haq, Ch. Advocate Supreme Court for Petitioners (in C.Ps. Nos.2021 to 2073, 2075, 2076, 2078, 2179 and 2180 of 2003).
Muhammad Akram Sh. Senior Advocate Supreme Court for Petitioners (in C.Ps. Nos.2129, 2139, 2141, 2142, 2147 to 2163 and 2177 of 2003).
Ch. Akhtar Ali, Advocate-on-Record for Petitioners (in C.P. No.2168 of 2003).
Kh. Muhammad Farooq, Senior Advocate Supreme Court, Rai Ahmed Nawaz Kharal, Advocate Supreme Court and M.A. Zaidi, Advocate-on-Record for Respondents (in C.Ps. Nos.2188 to 2425 of 2003 and in all other petitions).
In person (in C.Ps. 2182, 2183 to 2185 and 2330 of 2003).
Date of hearing: 9th March, 2004.
JUDGMENT
FAQIR MUHAMMAD KHOKHAR, J.---These petitions for leave to appeal, under Article 212(3) of the Constitution of Islamic Republic of Pakistan, by the Bank employees as well as by the National Bank of Pakistan (employer) are directed against common judgment dated 17-7-2003 passed by the Federal Service Tribunal, Islamabad (hereinafter referred to as the Tribunal) in Appeals Nos.98(Q)CW/2002 to 122(Q)CW/2002, 479 to 513, 520 to 560, 837, 838, 861 to 873, 1003 to 1006, 1013 to 1015, 1020 to 1029, 1030, 1031, 1032, 1038, 1041, 1067 to 1074 to 1079, 1083 to 1089, 1090 to 1093, 1094 to 1099, 1100 to 1106, 1107 to 1126, 1127 to 1133, 1134, 1136, 1140 to 1151, 1163 to 1169, 1184, 1185, 1194 to 1196, 1200 to 1204, 1209 to 1232, 1240 to 1262, 1270, 1271, 1318, 1319, 1416 to 1422, 1424 to 1427, 1435, 1437 to 1453, 1462 to 1464 to 1466 R/CW/2002.
2. The petitioners/Bank employees were appointed on fixed salaries by the National Bank of Pakistan in various categories of Godown Staff such as temporary Godown Keepers/Chowkidars or on daily wages as Assistants, Cashiers, Steno-typists, Typists, Key Punch Operators, Messengers, Canteen Boys, Drivers and Watermen etc. They continued in service for a number of years with short breaks in service from time to time without being regularized. The services of some of them were terminated. Therefore, they tiled appeals before the Tribunal for regularization, or as the case may be, for reinstatement and regularization in service as permanent employees of the Bank.
3. The Tribunal accepted most of the appeals of the Godown staff and the daily wage employees (Petitioners in Civil Petitions No.1772, 1789 to 1795, 1839, 1840, 1884 to 1896, 1901, 1910 to 1912, 1916 to 1938, 1944 to 1945, 2002, 2021 to 2073, 2075 to 2076, 2078 to 2079, 2084 to 2095, 2099 to 2121, 2129, 2130, 2139, 2141, 2142, 2147 to 2163, 2167 to 2174, 2177, 2179, 2180, 2182 to 2185, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499. to 2506, 2530 and 2606/2003), by the impugned judgment, dated 17-7-2003, in terms of para. 10 thereof to the following effect:---
"Result of the aforementioned discussion is that the appeals shown at serial Nos. 1 to 240 filed for regularisation by the Godown Staff and the daily wage employees succeed and are accepted. The respondent-Bank is directed to regularize the services of appellants who have completed three years of service with breaks of not more than 15 days between any two consecutive appointments. The regularization exercise should be completed within five months of the receipt of this judgment. While admitting these appeals this Tribunal had passed orders restraining the respondent-Bank from passing any adverse orders against the appellants. Therefore if services of any of the appellants were terminated during the pendency of his appeal, the same being violative of the Tribunal's orders, stands set aside and the affected employee is reinstated in service and entitled to payment of salary for the intervening period."
However, the appeals of the employees (Petitioners in Civil Petitions Nos.1909, 1913 to 1915, 1940 to 1942, 1946, 1993, 1994, 1996 to 1998, 2074, 2077, 2088, 2164, 2449, 2464, 2482 to 2484, 2489 and 2498 of 2003) were dismissed as time-barred. The appeals of the petitioners (in Civil Petitions Nos.1841 to 1843 of 2003) against their termination from service were also accepted and the respondent-Bank was directed to regularize their services in accordance with the criteria laid down in para.10 of the impugned judgment for regularization of temporary Godown Staff and daily wages employees whose services had not been terminated. The appeals of the petitioners (in Civil Petitions Nos.1939, 1991, 1992 and 1995, of 2003) were also dismissed as time-barred on the ground that they had been pursuing their remedies for regularization/reinstatement in service before the National Industrial Relations Commission despite the introduction of section 2-A in the Service Tribunals Act, 1973 (hereinafter referred to as the Act of 1973). Hence these petitions for leave to appeal by the employees for grant of back-benefits, against conditions of regularization and against dismissal of their appeals as time-barred and also by the Bank against the regularization/reinstatement of the employees in service.
4. Syed Iftikhar Hussain Gilani, Senior Advocate Supreme Court, learned counsel for the petitioners (Civil Petitions Nos.2002, 2084 to 2095, 2099 to 2121, 2130, 2449 to 2451, 2458 to 2460, 2462 to 2481, 2483, 2485 to 2496, 2499 to 2506, 2530 and 2606 of 2003) submitted that the Bank had agreed to absorb the petitioners and other employees after a meeting with representatives of the staff. Some of such employees had already been permanently absorbed. The Bank had issued a Circular Letter No.P/2003 dated 1-8-2003 which clearly showed that regular vacancies numbering up to 1500 were available to regularize the temporary Godown staff and the daily wages employees. The impugned judgment of the Tribunal was required to be modified so as to regularize and absorb the petitioners/employees from the date of their initial appointment with all back-benefits as was done in the case of other employees who were similarly placed. The learned counsel pointed out that there was a confusion in regard to the remedy provided to the employees of statutory corporations or other bodies established and controlled by the Federal Government. The controversy was eventually resolved by this Court in the case of Aftab Ahmed v. K.E.S.C. 1999 SCMR 197 wherein it was held that remedy of appeal under section 2-A of the Service Tribunals Act, 1973 had become available to such employees retrospectively in respect of their service related grievances. Even otherwise the question of limitation was of a technical nature which ought not have been treated to be insurmountable hurdle as laid down in the case of Managing Director Sui Southern Gas Company Ltd., Karachi v. Ghulam Abbas PLD 2003 SC 724.
5. Mr. Muhammad Akram Sheikh, Senior Advocate Supreme Court for the employees (Petitioners in Civil Petitions Nos.2129, 2139, 2141, 2142, 2147 to 2163 and 2177 of 2003) argued that ordinarily the findings of fact recorded by the Tribunal were not interfered with by this Court. The petitions filed by the Bank did not raise any substantial question of law of public importance as contemplated by clause (3) of the Article 212 of the Constitution which was necessary for grant of leave to appeal. It was further submitted that admittedly the letters of appointment of the employees had been issued by the Bank itself. There was no necessity of lifting veil merely on the ground taken by the Bank that the temporary Godown staff and daily wages employees were recruited on behalf of the account holders/borrowers. The learned counsel submitted that the entire bank staff whether temporary or permanent was there at the expense of the account holders. The learned counsel relied on the case of National Bank of Pakistan v. Ghulam Rasool 2002 PLC (C.S.) 1639 in support of his contention that in similar cases, this Court had declined interference with the regularization of the temporary Godown staff by the Tribunal. The learned counsel lastly submitted that the petitioners-employees were entitled to be regularized in service with back-benefits and without any pre-conditions.
6. Mr. Ihsanul Haq Chaudhry, Advocate Supreme Court, learned counsel for the employees (Petitioners in Civil Petitions Nos.2021 to 2073, 2075, 2076, 2078, 2079, 2164, 2179 and 2180 of 2003) argued that the appointment of the petitioners, like other employees, was made against permanent posts but the Bank adopted an illegal policy to employ the Godown and daily wages staff on fixed salary, from time to time, with short breaks in service after every 89 days. In many cases, the employees were not issued any letters of appointment or termination from service. The Bank itself had issued instructions in the year 1991 for absorption/confirmation of the daily wages employees and Godown staff. The lists of Godown staff and daily wagers were prepared and a high-powered committee was constituted by the Head Office of the Bank for scrutiny of the lists for the purpose of absorption. A number of such employees were regularized by the Bank by following a policy of pick and choose. However, the petitioners and some other employees were not regularized. It was further pointed out that the Headquarters of the Bank (Personal Management Wing) (Administration Division), Head Office, Karachi, had issued memo. dated 7-7-1997 whereby it was decided to absorb 1000 daily wages staff including temporary Godown staff, 700 in clerical and 300 in non-clerical cadre as on 29-2-1996, on seniority and provincial quota basis subject to fulfillment of qualifications prescribed for the posts. The Bank also issued another policy letter dated 1-8-2003 pursuant to an agreement, dated 20-1-2003 between the National Bank of Pakistan and Collective Bargaining Agent. It was decided that all employees of the clerical staff and non-clerical staff such as daily wagers/temporary Godown staff of the Bank who had completed three years of service in the case of clerical staff and 5 years service in the case of non-clerical staff and had passed their matriculation examination would be employed by the Bank in the regular cadre against 1500 posts provided the gap between their termination/re-appointment did not exceed 15 days. The Head Office of the Bank by Circular dated 15-9-2003 notified instructions to all its Regional Offices to issue the appointment letters to temporary Godown staff and daily wages employees on the spot. The learned counsel next submitted that in somewhat similar circumstances the management trainees of the Sui Northern Gas Company Ltd, Karachi were also inducted/regularized. Reference was made to the cases of Engineer Naraindas and another v. Federation of Pakistan and others 2002 SCMR 82, the Managing Director, Sui Southern Gas Co. Ltd. v. Saleem Mustafa Shaikh and others PLD 2001 SC 176 and Managing Director, Sui Southern Gas Company Ltd. Karachi v. Ghulam Abbas and others 2003 PLC (C.S.) 796. The learned counsel contended that even in the past, a number of daily wages employees and temporary Godown staff were regularized in service by the Tribunal as affirmed by this Court judgment, dated 23-10-2001 in Civil Petitions Nos.1833-L of 2001 to 1848-L of 2003. Civil Review Petitions Nos.1-L of 2002 to 39-L of 2002 there against were withdrawn by the Bank. Similarly, the Bank had also withdrawn Civil Petitions Nos.2172 and 2173 of 2001 titled National Bank of Pakistan and others v. Timer Hayat and others on 15-1-2002 involving similar cases. It was too late in the day for the Bank to say that the petitioners and similar other employees were employed by the Bank on behalf of the…
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