Calcutta High Court
Amal Kumar Roy vs Syndicate Bank & Ors on 21 January, 2014
Author: Sambuddha Chakrabarti
Bench: Sambuddha Chakrabarti
IN THE HIGH COURT AT CALCUTTA
Constitutional Writ Jurisdiction
Original Side
Present :
The Hon'ble Justice Dr. Sambuddha Chakrabarti
January 21, 2014
WP 250 of 2012
Amal Kumar Roy
Vs.
Syndicate Bank & Ors.
Mr. Swapan Kumar Dutta, Advocate with
Mr. Dipankar Das Gupta, Advocate for the petitioner
The Court :- By the present writ petition the petitioner has challenged an order dated
December 23, 2011 passed by the Assistant General Manager of the Syndicate Bank, that is, the
respondent no.1 herein. By the said communication the petitioner was informed that there was no
provision in the Bipartite Settlement to include the period of temporary service rendered prior to probation as permanent service. It was specifically made clear that the Bipartite Settlement did not confer any entitlement for inclusion of temporary service rendered by a temporary employee against a temporary or permanent vacancy on being absorbed into permanent service and the benefit of including temporary service into permanent service was beyond the scope of the said settlement.
2
By a letter dated June 20, 1998 issued by the Deputy General Manager of the concerned bank the petitioner was offered as an Attender in the sub-staff cadre on purely temporary basis of the bank. The petitioner had joined the bank on that day. His services were confirmed in the cadre of sub-staff with effect from January 1, 2004. On February 5, 2010 the petitioner made a representation requesting the authority to look into the matter so that the benefits of service for the period in question might be extended to him. The petitioner has given a list of benefits of service which had fallen due for the period from June 1998 till September 30, 2003 (hereinafter referred to as "the interregnum period").
This representation of the petitioner was disposed of by the bank authority alleging that the Bipartite Settlement did not confer any entitlement for including the temporary service rendered by a temporary employee against a temporary or a permanent vacancy on being absorbed in permanent service.
In June 2011 the petitioner made a fresh representation claiming that although the word "temporary" has been used to describe the nature of employment of the petitioner this was for all practical purposes a permanent employment as he was continuing to work without any break since his initial appointment. Refuting the contention of the bank authority the petitioner reiterated that the Bipartite Settlement contained definite provision for including temporary service into permanent service. The petitioner made a prayer for reconsideration of his case for treating the period from temporary service as part of the permanent service and to release the consequential benefits. In reply thereto the Assistant General Manager of the respondent bank had reiterated that the stand earlier taken by the bank by a communication which has been impugned in the present writ petition.
3
Mr. Swapan Kumar Dutta, the learned Advocate for the petitioner submits that the petitioner was in fact appointed in the permanent employment. The word "temporary" service has been wrongly used in his appointment letter. According to him the petitioner was working in the concerned bank and his temporary service started in the year 1988.
Mr. Dutta argued that in the appointment letter the period of posting was indicated with the words "till further orders". This clearly meant that his appointment was to be for an indefinite period which goes in support of the case of the petitioner that he was not a temporary employee. According to Mr. Dutta in the case of temporary appointment the period for which an employee is appointed is always mentioned and since it was not mentioned in the case of the petitioner it must be deemed to be a permanent appointment although the word "temporary" had been used in the appointment letter. It is the further case of the petitioner that when he joined as a temporary employee of the concerned bank he joined against a permanent vacancy and as such the bank now cannot deprive the petitioner of the benefits of his service rendered during the interregnum as part of the permanent employment.
Mr. Dutta has referred to the relevant clauses of the Bipartite Settlement dated October 19, 1966 between the bank and their workmen. Clause 20.8 of the said settlement inter alia provides that the temporary workman may be appointed to fill up a permanent vacancy provided such temporary appointment shall not exceed a period of three months during which the bank shall make arrangement for filling up the vacancy permanently. If such a temporary workman is eventually selected for filling up the vacancy , the period of such temporary employment will be taken into account as part of his probationary period.. Based on this the petitioner argued that since he was subsequently made permanent he is entitled to the benefits of his service rendered during the interregnum period as his appointment was not made for any limited period under the said 4 clause but for an indefinite period as claimed by him. It may be mentioned that in spite of notice none appeared on behalf of the respondent bank to oppose this application. Mr. Dutta has informed the Court that a copy of the affidavit in opposition affirmed by the bank has been served upon him and the petitioner has affirmed an affidavit in reply. Let affidavit in reply filed in Court be kept with the record. But no such affidavit in opposition has been filed by the bank.
Even with all the submissions made by the petitioner, there was no good denying that the petitioner was appointed as a temporary employee. By a communication dated May 26, 1998 the Deputy General Manager of the respondent bank had informed the petitioner that his application had been accepted and his name was taken on the panel of temporary Attender for entrustment of temporary duty. It may be mentioned that the application made by the petitioner was pursuant to an advertisement by the concerned bank for the purpose of drawing up a panel of persons who had worked on temporary basis at any of its branches in different categories for future vacancies (temporary/permanent) if they were found otherwise suitable and subject to the conditions as mentioned therein. It was specifically mentioned in the said advertisement that this was not an offer of employment in the bank. The persons who made applications in response to this notice had no claim of whatsoever nature for employment as a matter of right and this advertisement was not to be treated as a commitment by the bank for providing any employment.
We have to consider the question of employment in the backdrop of the specific clarifications made by the bank. The letter dated June 23, 1998 which has been annexed to the writ petition as Annexure P-2 was issued for the purpose of intimating the place of reporting for duty and for other details of employment. There also the nature of appointment was unambiguously highlighted by the bank authorities.. It was very specifically mentioned that "this is purely temporary appointment and does not entitle to have a regular appointment in the permanent service 5 of the bank or for any preferential treatment on that behalf". As such the submissions made by the petitioner that he was appointed against a permanent vacancy does not hold good. The fact that the period of posting was mentioned as until further orders cannot make it an appointment for an indefinite period. On the contrary it may be said that the posting at Burrabazar Branch where the petitioner was first placed would be valid and would continue till he got a further order. That is how the stay of an employee at certain place of posting is indicated. It has nothing to do with the nature of his stay at that place of posting.
Clause 20.8 of the Bipartite Settlement is relevant for our purpose. It has already been noted that the period of temporary employment was to be taken into account as part of his probationary period if such temporary workman is appointed to fill up a permanent vacancy and that such temporary appointment had not exceeded a period of three months during which the bank shall make arrangement for filling up the vacancy permanently. In other words, in order to get the benefit of the temporary service the condition stipulated in clause 20.8 will have to be satisfied. Apart from the fact that it does not contain any stipulation by which the benefits of service rendered during the interregnum could be made a part of the permanent service, the petitioner could not show any provision in the Bipartite Settlement as entitling him to the benefits of service after he was made permanent.
The petitioner has further relied on para 495 of the Sastri Award which says that a probationer after the expiry of period of six months should be deemed to have been confirmed. Based on that Mr. Dutta argued that the petitioner was on probation from the date of his first appointment on temporary basis. This submission is not maintainable as he was on temporary employment which was of a very different nature and a probationer has 6 to be in the same nature of employment and for the same post in order to get the fullest benefit.
I do not find any merit in the writ petition.
The same is hereby dismissed.
There shall however be no order as to costs.
Let urgent photostat certified copy of this order be given to the parties, if applied for, upon compliance with all formalities.
(Dr. Sambuddha Chakrabarti, J.) ANC.