Research › Search › Judgment

Patna High Court · body

2000 DIGILAW 335 (PAT)

Bank Of Madura Limited v. Union Of India

2000-03-01

AFTAB ALAM

body2000
Judgment Aftab Alam, J. 1. This writ petition, filed on behalf of the management of a non-Nationalised Bank seeks to challenge an award, dated June 17, 1998 given by the Presiding Officer of the Central Government Industrial Tribunal (No. 2) at Dhanbad in Reference No. 26 of 1994. The terms of the reference made under Sec. 10(1)(d) of the Industrial Disputes Act, 1947 are reproduced below: "Whether the demand of Bank of Madura Employees Union, Patna for regularising Shri Anand Kishore Naugarhiya in the post of Special Assistant is justified. If so to what relief the workman is entitled?" 2. Some of the material facts of the case which are not in dispute may be stated as follows. The Patna branch of the Bank, which is its only branch in this State, was established on September 23, 1976. A certain Anand Kishore Naugarhiya, the workman concerned in the reference, was appointed as a Probationer Clerk by order, dated September 20, 1978 and he joined at the Patna branch of the Bank on September 28, 1978. By order, dated April 10, 1979 he was confirmed in service with effect from March 28, 1979. On December 19, 1992, the workman concerned was "authorised to perform the functions of Special Assistant at Patna Branch." The authorisation to perform the work of Special Assistant carried a permanent special allowance of Rs. 524.00 and house rent allowance of Rs. 47.30 per month. 3. It is the case of the management that at that time there was no sanctioned post of Special Assistant in the Bank and authorisation to perform the additional work of Special Assistant was made on account of absence of officer(s) who might have gone on leave or in similar other exigencies and the special allowance was paid for doing the additional work in terms of the settlement, dated October 19, 1996. It is clarified that though initially the petitioner-bank was not a party to the 1966 settlement, later by a conciliation settlement between the management and the employees of the petitioner-bank arrived at on September 26, 1997, the parties beyond themselves to the terms and conditions of the 1966 settlement. It is clarified that though initially the petitioner-bank was not a party to the 1966 settlement, later by a conciliation settlement between the management and the employees of the petitioner-bank arrived at on September 26, 1997, the parties beyond themselves to the terms and conditions of the 1966 settlement. The authorisation to perform the work of Special Assistant was made in favour of the workman concerned initially for a period of three months which was extended from time to time, some times on verbal directions and some times on the basis of written orders. (Some such orders which were, marked as Exts. M-9 to M-11 before the Tribunal are at Annexure-4 series to the writ petition). 4. While the workman concerned was working as Special Assistant the local unit of the Employees Union on May 25, 1993 made a demand for making him permanent in that position. The Union is further said to have given a reminder in this regard to the management on July 11, 1993. Receiving no response from the management, the local union raised an industrial dispute and on October 27, 1993 by taking the matter before the Conciliation Officer. 5. The management-respondent by taking away the workman concerned from the position of Special Assistant but on receiving notice from the Conciliation Officer regarding the demand raised by the Union, the management once again allowed the workman concerned to work in that position. 6. The conciliation proceeding ended in failure and the Conciliation Officer submitted failure report, dated February 9, 1994. 7. In the meanwhile, the workman concerned was allowed to work as Special Assistant till November 16, 1993. 8. After submission of the failure report dated February 9, 1994 the management on February 15, 1994 authorised another employee in place of the workman concerned to perform the duties of Special Assistant. 9. It may be noted here that though the workman concerned was stopped from working as Special Assistant from November 16, 1993, he was allowed to draw special allowance upto February 10, 1994 (according to the management) and up to February 28, 1994 (according to the case of the workmen). 10. Finally on May 6, 1994 the Central Government being the appropriate Government issued the notification under Sec. 10(1)(d) of the Industrial Disputes Act making a reference of the Industrial Dispute for adjudication before the Central Government Industrial Tribunal (No. 2), Dhanbad. 11. 10. Finally on May 6, 1994 the Central Government being the appropriate Government issued the notification under Sec. 10(1)(d) of the Industrial Disputes Act making a reference of the Industrial Dispute for adjudication before the Central Government Industrial Tribunal (No. 2), Dhanbad. 11. Before examining the case of the parties on merits, it is necessary to take into account a parallel development which tended to overtake the industrial dispute raised by the focal unit of the Union concerning an individual workman. The Bank of Madura Employees Union by its letter, dated June 29, 1993 made a request to the management of the Bank for discussion on certain issues. One of the issues related to the Unions demand for regularising the post of Special Assistant on a permanent basis. On the basis of the Unions demand, on March 11, 1993 (that is, before issuance of the notification making the present reference) the management and the workmen entered into a settlement under Sec. 18(1) of the Industrial Disputes Act. Some of the provisions of the settlement relevant for the present purpose were as follows: 1. The Bank at its discretion shall create such number of post of Special Assistants, and select suitable persons from the clerical cadre members of the bank. 2. The mode of selection shall be decided by the Management in consultation with the union. 3. ** ** ** ** ** 4. ** ** ** ** ** 5. ** ** ** ** ** 6. ** ** ** ** ** 7. ** ** ** ** ** 12. Following the settlement, dated March 11, 1994 the management issued a circular, dated March 22, 1994 whereby and whereunder 50 vacancies were declared in the post of Special Assistant. The circular also provided the eligibility criteria and the mode for filling up the declared vacancies. Some relevant provisions of the circular are as follows: (a) No. of vacancies: 50 (b) Eligibility Criteria (i) Educational Qualification: Nil (ii) Experience: 12 years of completed service including probation. (iii) No of persons to be called for interview: 1:2 on the number of vacancies identified, i.e., 100 members (iv) Order of preference to be called for interview: seniority (v) Mode of Selection: Interview (vi) Mode of filling up the post: Statewise seniority basis. The vacancies in each State shall be filled in from among the clerical staff members of such States. 13. The vacancies in each State shall be filled in from among the clerical staff members of such States. 13. It is an admitted position that following the settlement and the issuance of the circular, dated March 22, 1994 the workman concerned was one of the candidates making application for the post of Special Assistant. According to the management he was at serial No. 3 in the seniority list of the employees of the Patna branch and was, therefore, not called for interview. The two persons above him in the seniority list were called for interview in terms of the circular, dated March 22, 1994 and one of them after being selected on the basis of the interview was duly appointed to the post of Special Assistant at the Patna branch. 14. Though the management seems to have taken the plea that the dispute concerning the individual workman (namely Anand Kishore Naugarhiya) must be deemed to have been resolved in terms of the settlement, dealing with the dispute in its generality and further though the management seems to have questioned before the Tribunal the maintainability of reference on the ground that it was covered by the settlement arrived at between the parties much before the issuance of the reference notification, it appears that no proper attention was paid by the Tribunal to the aforesaid objection raised by the management. 15. Though the question of maintainability of the reference did not receive any proper attention, the parallel development resulting into the settlement, dated March 11, 1994 and the circular dated March 22, 1994 seems to have caused lot of mix up of the issues before the Tribunal. From the award it appears that contentious arguments were made on the question of inter se seniority between the workman concerned (Anand Kishore Naugarhiya) and another employee R.N. Sharma who according to the management was senior to the workman concerned and who was eventually selected for appointment as Special Assistant in terms of the circular, dated March 22, 1994. According to the workmen the aforesaid R.N. Sharma though appointed (on March 3, 1975) as a clerk in the bank earlier than the petitioner (on September 28, 1978) he was brought on transfer from Calcutta to Patna, on his own request, after the appointment of the concerned workman. According to the workmen the aforesaid R.N. Sharma though appointed (on March 3, 1975) as a clerk in the bank earlier than the petitioner (on September 28, 1978) he was brought on transfer from Calcutta to Patna, on his own request, after the appointment of the concerned workman. The transfer of R.N. Sharma being made on his own request, it was contended on behalf of the workmen that he would lose his past seniority and must, therefore, rank as the junior-most clerk in the Patna branch on the date of his joining there. According to the management, seniority was determined from the date of appointment in the bank and there was no question of loss of seniority even on being transferred on ones own request. 16. It is to be noted that no relevant rules in this regard could be produced by any of the parties and it was presumably for that reason that even after devoting considerable attention to this aspect of the matter the Tribunal seems to have left the issue undecided, 17. In the end, the Tribunal simply seems to have accepted the case of the workmen that the workman concerned was authorised to perform the duties of Special Assistant and that he performed the duties of the Special Assistant for more than 240 days in a calendar year and on that ground alone he was entitled to be made permanent on that post, 18. It was an admitted position that on the basis of valid authorisations, the workman concerned had performed the work of Special Assistant from October 19, 1992 to November 16, 1993, i.e., for a period of slightly over one year. The question, however, is whether that alone could entitle the concerned workman to be made permanent on that position regardless of all other considerations and the terms and conditions of the settlement dated March 11, 1994 followed by the circular letter, dated March 23, 1994. 19. The Tribunal agreed with the workmen and gave his answer to the above question in affirmative. 19. The Tribunal agreed with the workmen and gave his answer to the above question in affirmative. The relevant passages from the conclusion portion of the award are as follows: "Since as I have already stated that the workman concerned worked as Special Assistant for 240 days within a period of one year and over which there is no dispute, he is certainly entitled to an order for regularisation for his services as Special Assistant specially when a number of vacancies of such Special Assistant say about 50 have already been created and when it has not been disputed that the post of such Special Assistant of Patna branch is yet to be filled in. Further; "On the other hand learned Advocate on the side of the workman concerned submitted that when there was no dispute of the performance of duties of Special Assistant by the workman concerned for 240 days in a calendar year and when it is apparent on the face of the record that the workman concerned was stopped from performing the duties of Special Assistant by the management at a stage when the management received notice from the RLC (C) Patna about the raising of the dispute for and on behalf of the workman concerned unbecoming of model employer like the Bank of Madura. Learned Advocate by relying on the decision of Hon ble Patna High Court of Judicature in the Civil Writ Jurisdiction No. 92 of 1989 that since it has not been disputed that Shri Naugarhiya rendered the services of Special Assistant for 240 days and he was paid special allowance not only for that period but for the subsequent period also although he did not perform the duties of Special Assistant, his services should be regularised in the post of Special Assistant. Learned Advocate on the side of the management tried to submit that the decision so relied upon on the side of the workman is not applicable in the instant case but learned lawyer abstained from satisfying me as to why the decision so relied upon on the side of the workman concerned is not applicable in the instant case. Learned Advocate on the side of the management tried to submit that the decision so relied upon on the side of the workman is not applicable in the instant case but learned lawyer abstained from satisfying me as to why the decision so relied upon on the side of the workman concerned is not applicable in the instant case. I, therefore, relying on that decision and keeping in mind the facts and circumstances of the case under which Shri Naugarhiya the workman concerned was stopped by the management from performing the duties of the Special Assistant after receiving notice from RLC (C) Patna, etc. cannot but hold that the claim of the Union for the workman concerned is quite justified and he should be regularised in the post of Special Assistant because of the number of days for which he performed the duties of such special assistant. Thus, on consideration of all these facts and circumstances, the evidence on record and the submissions made on behalf of the respective parties I hold that the workman concerned Shri Anand Kishore Naugarhiya is entitled to a favourable order for regularisation of his services in the post of Special Assistant." 20. On a careful consideration of the whole matter and on hearing counsel for the parties, I find that the view taken by the Tribunal is quite erroneous and the award given by it is untenable. This Court is unaware of any provision of law which would justify a direction for making a workman permanent on a post simply on the ground that he worked there for 240 days or more in calendar year. The reliance placed on decision of this Court in C.W.J.C. No. 92 of 1989; Bihar Fruit and Vegetable Development Corporation V/s. State of Bihar and Ors., reported in 1994 (1) PLJR 377, is quite misplaced. In that case the subject matter of the dispute was the removal from service of certain workmen who had been in service for more than 240 days in a Calendar year. This Court upheld the Tribunals award directing for their regularisation in service. The consideration in a case of removal from service on the ground of irregular appointment would be entirely different from a case where an employee claimed promotion to a higher post on the ground that he had worked in the higher position for more than 240 days in a calendar year. The consideration in a case of removal from service on the ground of irregular appointment would be entirely different from a case where an employee claimed promotion to a higher post on the ground that he had worked in the higher position for more than 240 days in a calendar year. The two cases are simply not comparable. I am, therefore, constrained to interfere in this matter and to set aside impugned award, dated June 17, 1998 made in Reference No. 26/94 and the matter is remitted to the Tribunal for a fresh decision in accordance with law and in the light of the observations made in this judgment. 21. I find the Tribunals award quite unsatisfactory and hence, I deem it necessary to indicate certain guidelines so that the Tribunal may not once again fall in error. I think, the Tribunal should first address itself to the question of maintainability of reference in view of the settlement arrived at between the parties on March 11, 1994 and the circular dated March 22, 1994 issued by the Bank management. The Tribunal would consider the question of maintainability of the reference quite independently and without being influenced by any observation or remarks made in this judgment. In case the reference is held to be maintainable then the Tribunal should proceed to pronounce an award after considering the respective claims of the parties on merits. 22. In the result, this writ petition is allowed subject to the observations and directions made above.