Bombay High Court
Bank Of India vs Bank Of India Workers Organization And ... on 12 April, 2002
Equivalent citations: [2002(93)FLR527], 2002(4)MHLJ31
Author: R.J. Kochar
Bench: R.J. Kochar
JUDGMENT R.J. Kochar, J.
1. The petitioner is a Nationalised Bank. It is aggrieved by the Award dated 11-11-1992 passed by the Presiding Officer of the Central Government Industrial Tribunal No. 2 in Reference No. CGIT-2/57 of 1988.
2. The respondent No. 1 Union had raised an industrial dispute seeking to challenge the action of the Management in the appointment of Special Assistants on the strength of clerical staff as on 31-12-1984 and 31-12-1985 in accordance with the Settlement dated 6-2-1987. According to the respondent-Union the petitioner Bank ought to have appointed the concerned two employees Shri Purohit and Shri Godbole as Special Assistants in the vacancies which arose on 31-12-1984 and 31-12-1985 in accordance with the existing practice of seniority and not in accordance with the Settlement dated 6-2-1987 between the Bank and the majority Union done. The present minority Union challenged the said action of the Management. There is no dispute that both of them have been subsequently selected and have been appointed in accordance with the Settlement dated 6-2-1987. It appears that the said minority Union sought to challenge the process of interview contemplated under the said Settlement dated 6-2-1987 to be applied to the vacancies of Special Assistants which existed in the year 1984 and in the year 1985. According to the Union the petitioner Bank ought to have filled up the post of Special Assistants in the year 1984 and in the year 1985 in accordance with the then existing Settlement and not in accordance with the subsequent Settlement dated 6-2-1987. In effect what the Union challenged was the action of petitioner Bank in filling up the vacancies of 1984 and 1985 in accordance with the Settlement dated 6-2-1987. Under the aforesaid Settlement it was agreed between the parties that while filling up the posts of Special Assistants the procedure of seniority and interview to select the eligible candidates would be followed. It appears that in the past the posts of Special Assistants were filled up only on the basis of Seniority and not on the basis of interview. It is further pertinent to note that the aforesaid two employees had appeared for the interview held in accordance with the aforesaid Settlement in the year 1986 on the basis of the Understanding dated 24-9-1986. It may be mentioned here that initially the petitioner Bank and the majority Union had arrived at an Understanding in respect of the selection process by interview to fill up the post of Special Assistants. This Understanding was followed by the aforesaid Settlement dated 6-2-1987. It appears that in view of the aforesaid Understanding dated 25-9-1986 the petitioner had started the process of filling up of the posts of Special Assistants on and from 1-1-1986. The aforesaid two employees had appeared for the interview but had failed and were not selected in that year. It appears that they were selected subsequently. After having failed their minority Union raised an industrial dispute to the aforesaid effect making a grievance that the vacancies of the years 1984 and 1985 should be filled up not in accordance with the Understanding dated 25-9-1986 and the Settlement dated 6-2-1987 but in accordance with the then existing Settlement on the basis of seniority alone and not on the basis of interview and other eligibility criteria.
3. Both the parties filed their pleadings before the Tribunal and their respective documents which were copies of Settlements. The learned Member of the Tribunal decided the dispute in favour of the minority Union holding that the action of the Management of the Bank in appointment of Special Assistants on the strength of clerical staff as on 31-12-1984 and 31-12-1985 in accordance with the Settlement dated 6-2-1987 and industry-wise settlement dated 17-9-1984 respectively was not just, legal and proper. The Tribunal further held and declared that Shri Godbole and Shri Purohit would be deemed to be posted on the posts of Special Assistants from the dates of their juniors who were posted on those posts and they shall be paid by the Bank all the necessary consequential benefits of the posts from those dates. It was further declared that they shall stand above their juniors in the list of the selected Special Assistants.
4. I have heard both the learned Counsel. I have also carefully considered the pleadings and the statements.
5. On the basis of the Settlement existing prior to the Understanding dated 25-9-1986 and the Settlement dated 6-2-1987 the posts of the Special Assistants were filled up on the basis of seniority only. There was no provision for interview and other eligibility criteria. The provision for interview and other eligibility criteria, were introduced by the aforesaid Understanding dated 25-9-1986 between the Bank and the majority Union. Under the earlier Settlement the number of posts of Special Assistants were made dependent on the strength of clerks employed in particular zone. The ratio was fixed such as for 20 clerks one post of Special Assistant or for 15 clerks one post of Special Assistant. According to Shri Dharap the Bank Management ought to have filled up the posts of Special Assistants in the year 1984 and in the year 1985 on the basis of the said ratio, which existed and not on the basis of the subsequent Understanding and the Settlement. Shri Rele on the contrary has submitted that the declaration of vacancies was never made in the year 1984 and in the year 1985 and therefore there was no question of filling up of the vacancies of the Special Assistants for the aforesaid two years. Shri Rele has further submitted that the time of allotment or assessment of work of the Special Assistants had arisen on and from 1-1-1987. To fill up the posts of the Special Assistants on the basis of the aforesaid Understanding the Bank Management had started the process of Selection by holding interviews and the said process was completed in the month of November, 1986. The Bank had accordingly selected the eligible candidates to be appointed for the posts of Special Assistants with effect from 1-1-1987. According to Shri Rele the Bank had acted in accordance with the Understanding and the (Settlement. According to Shri Dharap, however, it was not permissible for the Bank to fill up the post of Special Assistants which were created in the year 1984 and in the year 1985 respectively on the basis of the subsequent Understanding and Settlement. According to Shri Dharap those posts which existed in the year 1984 and in the year 1985 ought to have been filled up on the basis of seniority alone and not on the basis of seniority and interview.
Shri Dharap contends that the Bank had failed to fill up those posts and therefore the concerned employees were seriously prejudiced by the action of the Bank in filling up of the post of the year 1984 and of the year 1985 by applying new criteria of interview. According to Shri Dharap those two employees were entitled and were eligible to be promoted as Special Assistants in the year 1984 and/or in the year 1985 on the basis of their seniority alone.
6. It is pertinent to note that the Settlement dated 6-2-1987 was the outcome or the result of earlier Understanding arrived between the petitioner Bank and the Majority Union. It is an admitted position that the respondent No. 1 Union was not a Majority Union but was a minority Union. The aforesaid Understanding was with the Majority Union and the same was industry-wise. By the Settlement dated 6-2-1987 all the earlier Settlements were superseded. What was to be followed was the present Settlement dated 6-2-1987. On the basis of the Understanding dated 25-9-1986 the Bank Management had declared vacancies of the posts of Special Assistants to be filled up in October, 1986. It held interviews in November, 1986 and selected eligible candidates and appointed them w.e.f. 1-1-1987. There is nothing on record to show that for the years 1984 and 1985 the Bank had computed and declared any vacancies to be filled-up for the posts of Special Assistants applying the existing ratio. In the absence of such declaration by the Bank that there was particular number of vacancies of the Special Assistants it cannot be said that those vacancies were to be filled up in that year. The respondent Union has not brought on record any material to indicate that a number of vacancies had arisen in the year 1984 and in the year 1985 and that the concerned employees were entitled to be allotted the duties for the posts of Special Assistants in 1984 and 1985. Unless and until such vacancies are declared the employees do not get right to be promoted to a particular post or to get work of Special Assistants. The earlier Settlement no doubt fixed the ratio for the number of posts of Special Assistants. Mere prescription of ratio however, does not mean that there were particular number of posts of Special Assistants were available. The entire process of computing the vacancies of the Special Assistants was done in the year 1986. Since there was no material on record to show as to whether there was any vacancy in the year 1984 and in the year 1985 it cannot be said that the concerned employees or any one was entitled to be promoted to the post of Special Assistants. The Bank has declared the number of vacancies for the posts of Special Assistants in October 1986 and has held interviews and filled up the posts w.e.f. 1-1-1987 according to the Understanding and the Settlement to be read together. The Settlement of 1987 is also to be read along with the earlier Settlements. It is a fact that for the year 1984 and for the year 1985 there is nothing on record to show that there were number of vacancies available for the post of Special Assistants and that they were not filled up. The Bank had computed the total number of vacancies on the basis of the ratio and the Understanding in October 1986 and had started the process of filling up the post by holding interviews in November, 1986. Since there was nothing on record to show that there were vacancies of the Special Assistants in the year 1984 and in the year 1985 the concerned employees are not entitled to get the said posts for the year 1984 or 1985. I am therefore of the opinion that the said employees cannot be said to be entitled to get the posts of Special Assistants w.e.f. either 1984 or 1985. The Bank had declared the number of posts of Special Assistants vacant to be filled up in the year 1986 and the same were filled up w.e.f. 1-1-1987. The Tribunal was therefore not right in granting the relief to the Union and the concerned employees that they should be appointed as Special Assistants from the years 1984 and 1985 as there was no material on record before the Tribunal to show that in those two years vacancies of the Special Assistants existed and the said employees were not appointed to those posts. The Bank had identified and declared the number of vacancies of the Special Assistants in October, 1986 and initiated the process of selection in November, 1986 and appointed and filled up the posts of Special Assistants from 1-1-1987. I do not find any fault with the process and appointments made by the Bank. I do not consider that the action of the Bank in filling up the posts of Special Assistants for the year 1984 and for the year 1985 under the Understanding dated 25-9-1986 and Settlement dated 6-2-1987 to be illegal or invalid. Particularly there is nothing on record to show that in the year 1984 and in the year 1985 there were vacancies of Special Assistants to be filled up in those years. Whatever vacancies existed in October, 1986 the Bank had identified those vacancies and had started process to fill up those vacancies in accordance with the Understanding and the Settlement.
7. I do not find any illegality or impropriety in the action of the Bank Management in completing the process of filling up of the posts of Special Assistants on the basis of the Understanding and the Settlement dated 25-9-1986 and 6-2-1987 respectively. The Tribunal was therefore wholly wrong in assuming that there were certain vacancies of Special Assistants in the year 1984 and in the year 1985 and that those vacancies were filled up by the petitioner Bank by following the subsequent Understanding and the Settlement. The Bank had identified and computed the number of vacancies of the post of Special Assistants as existed in October, 1986 and had filled up those vacancies in accordance with the Understanding and the Settlement, which prevailed on that day. The approach of the Tribunal was therefore erroneous and was contrary to the material on record. As I have already observed that there was absolutely no material before the Tribunal to come to an assumption that there were vacancies of the Special Assistants in the year 1984 and in the year 1985. Had there been such material in that case the matter could have been different. In any case it is for the Management to compute the number of vacancies available and identify them and declare such vacancies to be filled up. In the absence of any such material the Tribunal was wrong in directing the petitioner Bank to fill up the posts of Special Assistants in accordance with the earlier Settlements which were already superseded in the subsequent Settlement of 1987. In any case as Shri Rele has submitted that the said employees had appeared for the interview and since they were not selected they have challenged the action of the Management. He has cited a Judgment of the Supreme Court on the point of estoppel [1995 II L.L.N. 22, Madan Lal and Ors. v. State of Jammu and Kashmir and Ors.] The ratio of the said judgment is applicable to the present case. The aforesaid two employees had appeared for the interview held in accordance with the Understanding dated 25-9-1986 and Settlement dated 6-2-1987 and had failed. Having failed in the interview they have challenged the action of the Management on the ground that the action of the Bank Management was illegal. These employees were in fact estopped from challenging the action of the Bank Management.
8. In the aforesaid circumstances Rule is made absolute. The impugned Award is quashed and set aside. No order as to costs.
9. Shri Dharap prays for stay of this Judgment. In the facts and circumstances as mentioned by me the stay is refused.
Certified copy is expedited.