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2007 DIGILAW 1074 (RAJ)

Central Bank of India v. C. I. T.

2007-05-21

PREM SHANKAR ASOPA

body2007
Judgment Prem Shanker Asopa, J.-By the writ petition, the petitioner Bank has challenged Award of the Central Industrial Tribunal (hereinafter referred to as the Tribunal) dated 01.01.1993 whereby the reference made by the Central Government for promotion of workman to the post of Head Cashier from the post of Assistant Head Cashier has been answered in the affirmative and his non promotion has been declared unjustified from 31.08.1992 when Shri J.P. Asopa refused to accept said promotion, with a further declaration that the workman will be deemed to have been promoted to the Post of Head Cashier from 31.08.1982 with all consequential benefits which be granted to him, otherwise the same will carry interest at the rate of 12% per annum. Cost of Rs. 100/-was also awarded to the workman. 2. Undisputed facts of the case are that Respondent No. 3 workman (hereinafter referred to as the Workman) was appointed in sub staff on 20.10.1970 and thereafter, he was promoted on 05.06.1978 on the post of Assistant Cashier cum Godown Keeper. His name appeared in the seniority list dated 01.03.1982 at Serial No. 9 whereas name of J.P. Asopa who had forgone the promotion appeared at Serial No. 7 and one Madan Singh who was at Serial No. 8 has already been promoted to the post of Head Cashier vide order dated 31.08.1982. It is also not in dispute that five promotions have been ordered to be made from the said seniority list of the persons from Serial Nos. 4 to 8 to the post of Head Cashier out of which J.P. Asopa shown at Serial No. 7 refused to accept the said promotion. It has also come on record in the statement of MW RC Savita that on the same day i.e. 31.08.1982, the Management came to know about refusal of promotion by J.P. Asopa on 31.08.1982. 3. 4 to 8 to the post of Head Cashier out of which J.P. Asopa shown at Serial No. 7 refused to accept the said promotion. It has also come on record in the statement of MW RC Savita that on the same day i.e. 31.08.1982, the Management came to know about refusal of promotion by J.P. Asopa on 31.08.1982. 3. The Central Industrial Tribunal (hereinafter referred to as the Tribunal) considered the aforesaid facts and came to the conclusion that once the Management decided to make five promotions on the post of Head Cashier and passed order for promotion of five persons on 31.08.1982 and when the fact of refusal to accept promotion by J.P. Asopa came to the knowledge of the Management on the same day i.e. on 31.08.1982 then there was no justification for the Management for not offering and promoting the workman against the fifth post, he being at Serial No. 9. 4. Placing reliance on Dr. O.Z. Hussain vs. Union of India, reported in 1988-90 SCLJ Page 682, the reference was answered by the Tribunal in the affirmative, as stated above. The terms of reference and the answer thereof by the Tribunal are quoted below : Reference : .5. A perusal of the impugned Award dated 01.01.1993 and the writ petition would reveal that many legal submissions which have been raised by the petitioner Bank in writ petition have not been raised before the Tribunal and as regards factual aspect, there was no dispute. However, development which has taken place during pendency of proceedings before the Tribunal but not brought to the notice of the Tribunal and another subsequent development which has taken place during pendency of writ petition, have been brought on record and consequential legal submissions have also been raised before this Court so as to challenge the Award. .(i) Onedevelopment which appears to have not been brought to the notice of the Tribunal and which has been brought on record of this Court by filing in additional affidavit on 30.11.2006 is that the workman was offered promotion to the post of Head Cashier on 23.03.1990 which was refused by him 27.03.1990 (Annexures 13 and 15 respectively). .(ii) Another subsequent development which has been brought on record is that during pendency of the writ petition the workman has taken voluntary retirement (VRS) on 22.01.2001. .(ii) Another subsequent development which has been brought on record is that during pendency of the writ petition the workman has taken voluntary retirement (VRS) on 22.01.2001. The correspondence and the orders which are placed on record of this Court are Annexures 17, 18 and 19. .6. Workman has not filed any counter to the aforesaid affidavit dated 30.11.2006. However, during the course of arguments, his Counsel has not disputed the aforesaid subsequent developments. .7. Since the submissions are legal, therefore, the same are being considered hereunder. 8. Submission of the Counsel for the petitioner is that as per the settlement between the workers Union and the Management, seniority list of Assistant Cashier cum Godown Keeper is prepared twice in the year i.e. 1st March and 1st September of the respective year. The seniority list dated 01.03.1982 expired on 31.08.1982 and, therefore, on account of expiry of the seniority list, the Workman is not entitled to any promotion subsequently and further were inclusion of name in the seniority list does not confer any right upon the Workman. .9. Mr. Kala further submits that some of the submissions of the petitioners were either not considered by the Tribunal or as regards the submissions considered by the Tribunal he submits that the Tribunal has committed error apparent on the face of the record, therefore, Award of the Tribunal dated 01.01.1993 is liable to be set aside. The submissions of Mr. Kala are summarized as under : .(1) That the Tribunal has failed to consider the fact that as per the settlement arrived at between the Workers Union and the Management, seniority list of Assistant Cashier cum Godown Keeper was to be prepared twice in a year i.e. on 1st March and 1st September of the respective year. In the instant case, the seniority list was published as on 01.03.1982 and the same expired on 31.08.1982, therefore, on account of the expiry of the seniority list the respondent-workman was not entitled to any promotion on the basis of panel of expired seniority list. .(2) That the Tribunal has failed to consider that mere inclusion of the name in the seniority list does not confer any right upon the workman for promotion. .(3) That the Tribunal also failed to consider this aspect of the matter that even if senior has refused then the next candidate in the panel has no right to be appointed. .(2) That the Tribunal has failed to consider that mere inclusion of the name in the seniority list does not confer any right upon the workman for promotion. .(3) That the Tribunal also failed to consider this aspect of the matter that even if senior has refused then the next candidate in the panel has no right to be appointed. .(4) Submission of Mr. Kala is that no retrospective promotion could be given and even if case of promotion is justified then also direction for consideration could only be given of ordering promotion .(5) That the Tribunal committed an error that after taking VRS the workman has no right to claim any benefit. .(6) Alternatively it was submitted that the Tribunal has committed an error in granting arrears of salary by passing of the Award of deemed retrospective promotion from 31.08.1982. .10. In support of the aforesaid submissions, the petitioner has placed reliance on the following Judgment s : 1. Rani Laxmibai Kshetriya vs. Chand Behari Kapoor & Ors., 1998 (4) LLN 90. 2. Roshni Devi vs. State of Haryana, 1998 (4) LLN 621. 3. Shankarsan Dash vs. Union of India, AIR 1991 SC 1612 . 4. Union of India & Ors. vs. K.V. Vijeesh, 1996 (2) SLR 319 . 5. State of Punjab vs. Raghbir Chand Sharma & Anr., 2002 (1) SLR 97 (SC). 6. Paluru Ramkrishnaiah & Ors. vs. Union of India & Anr., 1989 (2) SCC 541 . 7. Union of India & Anr. vs. Tarsen Lal & Ors., 2006 (12) JT 331 (SC). 8. State of Uttaranchal vs. Dinesh Kumar, (decided by the Supreme Court on 012.2006). 9. State of M .P. vs. Sri Kant, 1993 (II) LLJ 662 . 11. Counsel for the Workman has submitted that once the petitioner Bank decided to promote five persons on 31.08.1982 and on the same day, they had come to know that J.P. Asopa who was at Serial No. 7 had refused to accept the promotion whereas person at Serial No. 8 had accepted the promotion, therefore, the Workman being the next senior most candidate was entitled to promotion. Counsel has further submitted that there was no justification for the petitioner to promote only four persons. Therefore, the petitioner has committed an error in not promoting the respondent-Workman and the Tribunal has rightly answered the reference in the affirmative and further granted arrears of salary. Counsel has further submitted that there was no justification for the petitioner to promote only four persons. Therefore, the petitioner has committed an error in not promoting the respondent-Workman and the Tribunal has rightly answered the reference in the affirmative and further granted arrears of salary. In support of the Judgment of the Tribunal, the Counsel for the Workman has relied on Union of India & Ors. vs. Central Administrative Tribunal & Anr., 2004 (4) WLC 445 (Raj). 12. I have gone through the record of the writ petition and further considered rival submissions of the parties. 13. A constitutional bench in the case of Shankarsan Dash vs. Union of India, (Supra) has held that unless the relevant rules so indicate the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide and for appropriate reasons and once the decision to fill up vacancy has been taken the State is bound to respect comparative merit. Relevant portion of Para 7 of the aforesaid Judgment is as follows : "Unless the relevant recruitment rules so indicate, the State is under no legal duty to fill up all or any of the vacancies. However, it does not mean that the State has the licence of acting in an arbitrary manner. The decision not to fill up the vacancies has to be taken bona fide for appropriate reasons. And if the vacancies or any of them are filled up, the State is bound to respect the comparative merit of the candidates, as reflected at the recruitment test, and no discrimination can be permitted". (emphasis supplied) 14. In the instant case, the Management has taken decision to fill five posts of Head Cashier by making promotion from the post of Assistant Cashier cum Godown Keeper and there is no subsequent decision not to fill up all the five posts. (emphasis supplied) 14. In the instant case, the Management has taken decision to fill five posts of Head Cashier by making promotion from the post of Assistant Cashier cum Godown Keeper and there is no subsequent decision not to fill up all the five posts. Therefore, the petitioner Bank was under an obligation to fill up all the five posts and simply issuing five orders of promotion on 31.08.1982 i.e. the last date of expiry of the list and further submitting the fact that on 01.09.1982 the said list dated 01.03.1982 on the basis of which above five promotions have been ordered to be made expired, therefore, it cannot be operated has no substance. 15. Supreme Court in Purshottam vs. Chairman, M.S.E.B. & Anr., 1999 (6) SCC 49 in Para 4 has held that right of a selected candidate cannot be taken away on the pretext that the said panel has in the meanwhile expired and the post has already been filled up by somebody else on the ground that the employer cannot take advantage of its erroneous decision. Relevant portion of Para 4 reads as under : "4. In view of the rival. . . .The right of the appellant to be appointed against the post to which he has been selected cannot be taken away on the pretext that the said panel has in the meantime expired and the post has already been filled up by somebody else. Usurpation of the post by somebody else is not on account of any defect on the part of the appellant, but on the erroneous decision of the employer himself . In that view of the matter, the appellants right to be appointed to the post has been illegally taken away by the employer . . . in nature." (emphasis supplied) 16. The Bank was under an obligation to offer the same to the respondent workman who was at Serial No. 9 when four promotions were up to Serial No. 8. The list expired on account of fault of the Bank by operating the same on the last date. . . in nature." (emphasis supplied) 16. The Bank was under an obligation to offer the same to the respondent workman who was at Serial No. 9 when four promotions were up to Serial No. 8. The list expired on account of fault of the Bank by operating the same on the last date. The Bank was under obligation to offer the said post to the workman on 31.08.1982 or subsequent thereto for one more reason that the Bank had decided to make five promotions and issued five promotion orders on 31.08.1982 thereafter, there is no decision not to make fifth promotion except the plea of expiry of list, therefore, the respondent workman could not be allowed to suffer. I need not consider other Judgment on the point that mere inclusion in the panel does not give a right to appointment and the panel does not remain alive till all the persons are promoted wherein the aforesaid constitutional Bench Judgment has been followed, except the citation of Mr. Kala State of Punjab vs. Raghuveer Chand, reported in 2002 (1) SLR 97, which is distinguishable for the reason that in that case only one Advocate was to be appointed as Assistant Advocate General out of the panel of three, one who was appointed, resigned after sometime, therefore, the Court held that the panel exhausted. The present case is of refusal of taking promotion and not of resigning after the promotion/appointment. 17. As regards submission of Mr. Kala that no retrospective promotion could be given and even if case of promotion is held to be unjustified then also direction for consideration could only be given. There was no material on record that the Bank had taken decision not to promote fifth person from the list dated 01.03.1982. The name of the respondent workman was at Serial No. 9 when person at Serial No. 7 did not join and person at Serial No. 8 joined thus, the next person available in the list for promotion was the respondent-workman, there is no denial of this fact. Further there is also no denial that the respondent-workman was eligible and suitable for promotion. In such circumstances, when the respondent-workmans eligibility as well as suitability was adjudged in his favour and he was at Serial No. 9, he was entitled for promotion. Further there is also no denial that the respondent-workman was eligible and suitable for promotion. In such circumstances, when the respondent-workmans eligibility as well as suitability was adjudged in his favour and he was at Serial No. 9, he was entitled for promotion. Thus, the Tribunal was justified in issuing direction in favour of the respondent-workman and the case cited by Mr. Kala in this regard reported in State of M.P. vs. Sri Kant, (Supra) arising out of CAT direction for promotion where in normal course no evidence was to be taken and the applicant was found not fit for promotion to the post of Assistant Director Town and Country Planning Officer against the year 1981. So in case of a person who was not found fit fresh consideration is necessary, therefore, the Supreme Court gave finding that it was not within the competence of the Tribunal to have ordered deemed promotion and the said case is distinguishable on facts. 18. As regards arrears of salary and consequential benefits, Counsel for the petitioner has placed reliance on a Judgment of the Supreme Court in Paluru Ramkrishnaiah & Ors. vs. Union of India & Anr. and Union of India & Anr. vs. Tarsen Lal & Ors., (Supra) wherein the arrears of salary have not been granted on the principle of no pay no work. 19. Although the principle of no work no pay is usually applied in case of a direct recruit but in case of promotee who is in service, normally the said principle is applied only when there is a rule for denial of the arrears of salary and if there is no rule, then the Courts are free to apply their mind and pass appropriate orders. But here in the instant case there are two different reasons for making departure from the said principle of rule of denial of arrears of salary as well as Judgment of the Division Bench in Union of India & Ors. But here in the instant case there are two different reasons for making departure from the said principle of rule of denial of arrears of salary as well as Judgment of the Division Bench in Union of India & Ors. vs. Central Administrative Tribunal & Anr., cited by respondent-workman (Supra) which distinguish the present case (i) that the petitioner during pendency of the Labour Court award was offered the post of Head Cashier, he refused it when the dispute was pending before the Tribunal and (ii) the respondent workman has taken voluntary retirement on 22.02.2001 when this writ petition was pending clearly reveal that the petitioner was not only unwilling to work on the post of Head Cashier but also took VRS which shows his further unwillingness to continue in the service of the Bank and is not entitled for arrears of salary. The award dated 01.01.1993 was passed before taking VRS by the respondent workman in 2001 and on this date the writ petition was pending and further there was no mention in the order of VRS that the respondent workman will not claim any benefit of the Award. In such circumstances, the Award will not become infructuous simply on account of taking VRS. In view of the above, the Award of the Tribunal deserves to be modified. 20. Resultantly, the writ petition is allowed in part and the Award of the Tribunal is modified to the extent that the direction given by the Tribunal for deemed promotion of the petitioner from 31.08.1982 is maintained but the respondent workman shall not be entitled to any arrears of salary. However, he is entitled to notional fixation.