Calcutta High Court (Appellete Side)
Md. Rafique vs The Central Bank Of India & Ors on 16 January, 2023
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURISDICTION
APPELLATE SIDE
Present:
The Hon'ble Justice Raja Basu Chowdhury
WPA 8830 of 2021
Md. Rafique
Vs.
The Central Bank of India & Ors.
For the petitioner: Mr. Malay Dhar,
Mr. Biswajit Sarkar
For the respondents: Mr. Bishwambhar Jha
Heard on : 04.11.2022.
Judgment on : 16.01.2023.
Raja Basu Chowdhury, J:
1. The instant writ application has been filed, inter alia,
challenging the award passed by the Learned Central
Government Industrial Tribunal, Kolkata, West Bengal in
Reference No. 24 of 2016. It is the petitioner's case that
previously he was engaged as a personal driver of the
respondent authorities. The respondents having found the
petitioner to have satisfactorily discharged his duties and
having found him to be eligible for absorption in the service of
the respondent no.1, as sub-staff cum driver, the General
2
Manager, HRD by letter dated 27th October, 2011 recommended
for his absorption. Thereafter he was appointed in the post of
sub-staff cum driver on 21st December, 2011 and on successful
completion of the probationary period his service had been
confirmed.
2. The petitioner regularly receives his monthly salary through his
bank account as per pay slip issued by the respondent no.1. In
the pay slip his job description from the beginning was
mentioned as driver cum peon. Such description continued till
February 2012. Suddenly, thereafter, without any intimation
the petitioner's job code, in the pay slip was changed to peon on
and from March, 2013. The petitioner was also not paid
additional allowance payable to drivers, in terms of bipartite
settlements between the respondent no.1 and the unions.
3. Being aggrieved with the unilateral change in service conditions
and for non-payment of the allowance payable to drivers, the
petitioner through the union, moved before the conciliation
officer for redressal of his grievances.
4. The conciliation having failed, the appropriate Government in
exercise of its powers under Section 10 of the Industrial
Disputes Act, 1947 (hereinafter referred to as the said Act.),
had passed an order dated 28th February, 2016 thereby
referring the following disputes to Tribunal for adjudication:
3
"Whether the action of the management i.e. Central
Bank of India in denying driving allowance to i) Shri
Jagdeo Prasad, 2) Md. Rafique, 3) Shri Ram Yaya
Pandey is legal/and or justified? If not, what relief the
workmen are entitled?"
5. Before the Tribunal the petitioner through his registered union
filed a statement of claim and other relevant documents. The
respondents did not contest the proceedings. Ultimately by an
award dated 18th September, 2019 the Learned Tribunal was,
inter alia, pleased to hold that the petitioner along with other
similarly placed persons was recruited in the bank on 21st
December, 2011 on the basis of their respective appointment
letters. The conditions of service of the workmen were
mentioned in their letters of appointment. Since the
appointment letters of the workmen specifically mentions that
their recruitment as sub-staffs were without special pay, the
Tribunal did not find that denial of driving allowance to the
workmen as violative of the conditions of service, therefore, not
illegal or unjustified. The reference was answered accordingly.
6. Although the reference was made concerning three workmen,
the challenge to the award is only by the writ petitioner.
7. Mr. Dhar, learned advocate representing the writ petitioner,
submits that prior to the petitioner being appointed as sub-
staffs cum driver, he was engaged as a personal driver of the
respondents. It is only on the basis of his satisfactory
4
performance and on being found eligible, the General Manager
of the respondent no.1, by letter dated 27th October, 2011 had
recommended for his absorption. Consequent upon the same,
the petitioner had been appointed as sub-staff cum driver. It is
submitted that notwithstanding the petitioner being appointed
as sub-staff cum driver, the petitioner has never been allotted
duties of a driver. Mr. Dhar, submits that the petitioner is an
employee of the respondent no.1 and as such is entitled to the
benefits of the bipartite settlements entered into between the
respondent no.1 and the registered union of the respondent
no.1. By relying on the bipartite settlements, he says that
irrespective of the fact whether the petitioner's service is
utilized as a driver, the petitioner cannot be denied the
allowance attached to the post of a driver, simply because the
petitioner is not assigned the work of a driver.
8. By drawing attention of this Court to page 43 of the writ
application in particular clause 20.1 and 20.2 of the bipartite
settlement, it is submitted that ordinarily an employee shall not
be assigned, more than two designations and in case an
existing workman having more than two designations, the same
shall be revised. However, an employee performing duties on
regular assignment, which entitles him to a special allowance,
shall not be deprived off such allowance by reasons of such
revision.
5
9. According to Mr. Dhar, the terms of the letter of appointment
cannot override the bipartite settlements. By referring to the
pay slip of the petitioner, it is submitted that the petitioner's
designation remains to be a driver and as such the petitioner is
entitled to special allowance as are payable to drivers. By
drawing attention of this Court to page 33 of the writ
application, it is submitted that the respondents attempted to
unilaterally alter the designation of the petitioner from sub-staff
cum driver to peon. He says similarly placed persons are
getting special allowance, such fact has not been denied in the
affidavit-in-opposition. The Tribunal had overlooked the fact
that the petitioner was originally appointed as driver and the
factum of being posted as sub-staff cum driver has also been
recorded in the appointment letter. The Tribunal also
overlooked the bipartite settlement while laying emphasis on
the terms of letter of appointment. It is submitted that the
award impugned in the writ application is perverse, the same
should be set aside and the respondent no.1 should be directed
to make payment of the special allowance, as are payable to
drivers, to the petitioner.
10. In support of his contention that an employee is entitled to
a special allowance if such allowance is attached to the
post/designation, then notwithstanding the fact that the
services of such employee is not utilised for the
6
designation/post which has been assigned to such employee,
the special allowance cannot be denied, he places reliance on a
judgment delivered by the Hon'ble Supreme Court in the case of
Hindustan Lever Ltd. -Vs. - Ram Mohan Ray & Others.1
11. Per contra, Mr. Jha, learned advocate appearing for the
respondents has submitted that the respondents had never
utilised the services of the petitioner as a driver. It is submitted
that unless the petitioner is appointed as a driver against a
permanent vacancy, no allowance can be disbursed in his
favour. It is submitted that the petitioner has not been
appointed as a driver. The bilateral settlements referred to by
the petitioner cannot be made applicable in the petitioner's case
since the petitioner has not been appointed as a driver. The
Tribunal has rightly passed the award by holding that the
petitioner has no right to claim driving allowance. He submits
that the terms and conditions of service of the petitioner
disentitle the petitioner to claim allowance payable to drivers.
He says that judgment delivered in the case of Hindustan Lever
Ltd.2 relied on by Mr. Dhar has been rendered in a different set
of facts, the same does not assist the petitioner. He says that
the writ application has no merit the same should be
dismissed.
1
Hindustan Lever Ltd. -v. - Ram Mohan Ray & Others, (1973) 4 SCC 141.
2
supra-1.
7
12. Heard the learned advocates appearing for the respective
parties and considered the materials on record. I find that the
writ petitioner prior to his appointment with the respondent
no.1 was working as a personal driver of an executive of the
respondent no.1. Record would reveal that the management of
the respondent no.1 had decided to absorb the personal drivers
working with the bank executives. The managements' decision
to absorb such workmen is extracted below:
"In order to mitigate the shortage of sub-staff at
branches and meet the requirement of sub-ordinate
cadre staff at branches in a limited way, it has been
decided to absorb the personal drivers working with
the Bank's executives, who conform to the following
eligibility criteria:
Continuous service with any executive of the bank of
minimum 10 years with break of maximum one year
as of 30th June 2011
Should be medically fit
He should be registered with Employment
Exchange, which should be currently valid
Should hold driving licence for Medium Motor
Vehicle
Good conduct certificate from the Executive with
whom he is presently working
On the basis of the details of personal drivers
provided by you, the following personal drivers of
your region have been found to be eligible for
absorption in bank's employment as Sub-staff cum
8
driver and their services will be utilised as sub-staff
(without any special allowance). However whenever
any permanent vacancy of driver arises in the region,
their services will be considered for utilising as
driver.
Name of Drivers Presently working with
Shri. Jagdeo Prasad DGM,CBOTC/ AGM,Law
Shri Ramgya pandey GM, Kolkata
Shri Md. Rafique DGM, Recovery"
13. The aforesaid managements' decision which finds place in
the communication dated 9th December, 2011, inter alia,
provides that such decision has been taken to mitigate the
shortage of sub-staff and further records, the conditions for
eligibility and appointment.
14. Based on the aforesaid decision, the letter of appointment
was issued on 21st December, 2011. From the letter of
appointment, I find that the writ petitioner had been appointed
as a sub-staff cum driver. The terms of appointment of the
petitioner are also set forth in the letter of appointment. The
same are extracted herein below:
"We are glad to inform you that you have been taken
up to work as Sub-staff cum Driver in our Bank's
Subordinate Cadre on probation for six (6) months
with effect from 21.12.2011 and have been placed at
our Bira Branch on a basic salary of Rs.5850.00 +DA
as per rules + HRA as admissible as per rules.
9
Please note that your service will be utilized as sub-
staff (without any special allowance). However
whenever any permanent vacancy of Driver arises in
our Region, your services will be considered for
utilizing as Driver."
15. The terms of appointment categorically provided that the
petitioner had been appointed as a sub-staff (without any
special allowance). The same also records that whenever any
permanent vacancy of driver arises, the service of the petitioner
shall be considered for being utilised as a driver. The petitioner
had accepted the terms of his appointment as set forth in the
said letter of appointment, he not only joined the respondent
no.1 but also worked as a sub-staff. I thus find that the letter
dated 9th December, 2011 issued by the General Manager,
forms the very basis of the writ petitioner entering into service.
Based on the aforesaid letter, the letter of appointment had
been issued. Although Mr. Dhar, learned advocate representing
the writ petitioner has, inter alia, claimed that the letter of
appointment cannot override the bilateral agreements I do not
concur with such view. I find that the petitioner had not been
appointed in the service of the respondent no.1 in usual course
but on the basis of the decision taken by the management of
the respondent no.1. I find it had been categorically provided
both in the letter recommending appointment as also in the
letter of appointment that the petitioner shall not be entitled to
10
any special allowance. I also find that the respondents have not
utilised the services of the petitioner as a driver, he has only
been utilised as a sub-staff. There is also no whisper in the writ
application that the writ petitioner worked as a driver.
16. I find that Mr. Dhar has laid a lot of stress by drawing
attention of this Court to the bipartite settlement at page 43 of
the writ application, especially clauses 20.1 and 20.2 thereof.
17. A perusal of the aforesaid clause would demonstrate that
more than two designations will not be combined in case of any
workmen. In the case of existing workmen having more than
two designations, bank will revise their designations to confirm
to the said provision, upon intimation to the workmen, provided
that an employee performing duties on regular assignment
which entitled him to a special allowance will not be deprived of
such allowance merely by reasons of such revision. From the
appointment letter, it would appear that the parent designation
of the petitioner is that of a sub-staff and he is performing
duties of a sub-staff on a regular basis. Since the petitioner is
performing duties of a sub-staff, the same does not entitle him
to a special allowance payable to a driver. Since the petitioner
is otherwise not entitled to a special allowance payable to a
driver, I am afraid the aforesaid bipartite settlement on which
much stress has been laid by Mr. Dhar does not assist him. Mr.
Dhar has also referred to a Commentary on Award and
11
Settlements in Banks, by annexing a truncated copy of such
commentary. I am of the view that such commentary cannot be
made applicable in case of the petitioner, especially having
regard to the terms of appointment as set forth in the
appointment letter. The Tribunal upon elaborate deliberations
has concluded that the bilateral agreements cannot be made
applicable in the petitioner's case since the conditions
mentioned in the letter of appointment are deemed to be his
conditions of service and the appointment letter mentions his
recruitment as sub-staff without special allowance.
18. The judgment delivered by the Hon'ble Supreme Court in
the case of Hindustan Lever Ltd.3, relied on by the petitioner
does not assist him. I find that the Hon'ble Supreme Court in
paragraph 12 of the said judgment, while considering whether
withdrawal of an allowance constitutes alteration in service
conditions, after elaborate discussions has been, inter alia,
pleased to observe as follows:
"12. It is hardly necessary to refer to the various
decisions which were cited before us as to what would
constitute conditions of service the change of which
would require notice under Section 9-A of the Act.
.........................................................................................
.............................................................................A close scrutiny of the various decisions would show that whether any particular practice of allowance or 3 supra-1.
12concession had become a condition of service would always depend upon the facts and circumstances of each case and no rule applicable to all cases could be called out from these decisions. In the face of the elaborate consideration of the evidence and findings made by the Tribunal we are unable to hold that there has been any change in the terms and conditions of the service of the workers in this case to their detriment. It follows, therefore, that Section 9-A is not attracted. It is, therefore, unnecessary, to consider the question whether the argument advanced by Shri Gupte on behalf of the employer that in view of the very prolonged and detailed discussions that went on between the parties there was a substantial compliance with provisions of Section 9-A and the mere fact that a formal notice was not given under Section 9-A would not make the reorganisation scheme not valid."
19. As such whether an allowance is attached to a job description and whether the same is payable has to be considered in the facts of a case. I find that the Tribunal has held the terms of letter of appointment, to be the conditions of service of the petitioner and has concluded that such conditions do not entitle the petitioner to a special allowance.
Proceeding on such premise while answering the reference, the Tribunal, inter alia, held that denial of driving allowance to the concerned workmen is not violative of their conditions of service and therefore, not illegal and unjustified.
1320. I do not find any infirmity far less any jurisdictional error committed by the Tribunal while passing the award. No case for interference has also been made out. The writ application fails, and is accordingly dismissed.
21. There shall be no order as to costs.
22. Urgent Photostat certified copy of this order, if applied for, be given to the parties on priority basis upon completion of requisite formalities.
(Raja Basu Chowdhury, J.)