Bombay High Court
Laxman Vishnu Bhandari And Anr. vs Bank Of Maharashtra And Anr. on 31 October, 1990
Equivalent citations: 1991(2)BOMCR637, [1991(62)FLR791]
Author: Sujata Manohar
Bench: Sujata Manohar
JUDGMENT Sujata Manohar, J.
1. The 1st petitioner Laxman Vishnu Bhandari, is an employee of the 1st respondent Bank. The 2nd petitioner is the Trade Union of workers employed by the Bank. The 1st petitioner is a member of the 2nd petitioner Union. By a memorandum dated 14th April, 1970 the 1st petitioner was appointed on the staff of the 1st respondent Bank as a clerk at its Akluj Branch temporarily for a period of two months. The appointment was with effect from 20-4-1970. The appointment letter said that his appointment will automatically come to an end on the last day of the period mentioned there unless the name is extended by another memorandum in writing. Accordingly the 1st petitioner worked as a clerk with the 1st respondent bank from 20th April, 1970. He was continued in service in the said post even after the expiry of the period of two months. By an offer dated 12th September, 1970 the petitioner was appointed on the Bank's staff as a clerk cum godown keeper. The appointment was initially for a period of six months, on probation. The petitioner was to be confirmed in service after the expiry of the probationary period if his work was found satisfactory. Clause 15 of the letter of offer stated that in case the petitioner accepted the offer he should join duties on 1-8-1970 at Akluj Branch Staff Division, Head Office, Poona 2. Since the letter of offer was of 12th September, 1970, it would have been absurd to ask the petitioner to join duties on 1 -8-1970, but for the fact that the petitioner was already in the service of the 1st respondent Bank and was already occupying the post in question. In other words, as a result of this offer, the petitioner was given a permanant appointment as from 1-8-1970. The petitioner was required to accept the offer. Accordingly he signed an agreement dated 17th September, 1970. Thereafter he has been confirmed in this post with effect from 1-1-1971.
2. Under bi-partite settlements of 19th October, 1966 arrived at between certain banking companies and their workmen to which the 1st respondent was also a party certain terms and conditions of service of Bank employees were settled. In the settlement there are certain terms which affect temporary employees. Paragraphs 20.7 and 20.8 of this settlement which effect temporary employees are as follows:
"20.7. In supersession of paragraph 21.20 and sub-clause (c) of paragraph 23.15 of the Desai Award, Temporary Employee" will mean a workman who has been appointed for a limited period for work which is of an essentially temporary nature or who is employed temporarily as an additional workman in connection with a temporary increase in work of a permanent nature and includes a workman other than permanent workman who is appointed in a temporary vacancy caused by the absence of a particular permanent workman.
20.8. A temporary workman may also be appointed to fill a permanent vacancy provided that such temporary appointment shall not exceed a period of three months during which the bank shall make arrangements 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."
3. It is the contention of the petitioner that in view of paragraph 20.8 his service as a temporary employee must be counted as part of the probationary period for all purposes. In this connection the petitioner had submitted a representation dated 9th July, 1973 to the Assistant Divisional Manager of the 1st respondent requesting that since he had been appointed as a clerk at Akluj branch on 20-4-1970, and had been working continuously at the said branch without a break in service, he should have been confirmed in service on 1-10-1970. He submitted that the period of two months' service as a temporary clerk should have been taken into account for the purposes of confirmation and increments. This contention has not been accepted by the 1st respondent bank. It seems that there are other workers also who were similarly situated as the 1st petitioner.
4. The second petitioner Union took up the issue of considering the period of two months of temporary service for the purpose of confirmation by a charter of demands against the 1st petitioner Bank. On failure of conciliation proceedings the dispute was referred to the Industrial Tribunal for adjudication. The Industrial Tribunal, by its award dated 6th August, 1982, has rejected the contention of the petitioners that paragraph 20.8 of the bipartite agreement applies to the present case and has rejected the petition. The present writ petition challenges this award of 6th August, 1982.
5. Before the Industrial Tribunal the 1st respondent Bank had filed a written statement. We are only concerned with the written statement in so far as it refers to the 1st petitioner. The relevant contents of the written statement are set out in paragraph 10 of the award. The Bank had contended that as per the usage of the Bank, the 1st petitioner was taken initially for a period of two months for training. It was alleged that it was the practice of the Bank to impart pre-recruitment training to candidates who were appointed in a clerical cadre. After successful completion of the training period, if they were found suitable, they were appointed on probation when there were regular and clear vacancies. The bank has further stated that originally the candidates, during the training period, were only given a stipend of Rs. 90/- per month. However, under a subsequent revised arrangement, the Bank had started to pay full salary to the new recruits, though selected for training. The bank therefore, contended that the initial temporary appointment of the petitioner for a period of two months was for the purpose of training and therefore it should not be accounted as a part of his regular service. The Bank contended that since the petitioner had signed a fresh agreement on 17th September, 1970 for appointment as a clerk and since a declaration of Fidality and Secrecy was also signed on 17th September 1970, his regular appointment with effect from 1st of August, 1970 can only be taken into account for service purposes.
6. It is however, difficult to see how the 1st respondent can by pass the provisions of para 20.8 of the bipartite settlement. It is not the case of the 1st respondent Bank that the petitioner was appointed initially to perform any work of a temporary nature. It is not the case of the 1st respondent that there was any temporary increase in work or that the petitioner was appointed in a temporary vacancy caused by the absence of any workman. In other words, it is nobody's case that the initial temporary appointment of the petitioner was in the circumstances set out in paragraph 20.7 of the bipartite settlement. The only other paragraph which applies to a temporary workman who is not covered by paragraph 20.7 is paragraph 20.8. This paragraph applies to temporary workman who may be appointed to fill a permanent vacancy. In such a case paragraph 20.8 provides that such temporary appointment shall not exceed a period of three months and that 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 a part of his probationary period. In the present case, the petitioner, though initially appointed temporarily, was appointed to fill a permanent vacancy. This is apparent from the fact that right from 20-4-1970 till 12-9-1970 when the offer of a permanent post was made to him, the petitioner was continuously in service and was occupying the post in question. He was thereafter given a regular appointment to fill the same post. Had it not been a permanent vacancy, the petitioner would not have been asked to continue in the same post on a permanent basis in September 1970. Nor could he have been appointed to that post retrospectively with effect from 1-8-1970. In these circumstances, since the 1st petitioner has been eventually selected for filling up the vacancy, the period of his temporary employment has to be taken into account as a part of his probationary period by virtue of clause 20.8 of the bipartite settlement.
7. The tribunal has clearly erred in observing that the petitioners have failed to establish that paragraph 20.8 applies to the 1st petitioner's appointment and to the appointment of other workers before the Tribunal who were similarly situated. The fact that the 1st respondent bank has considered this temporary appointment for two months as a period of training for the post also indicates that the vacancy to which the 1st petitioner was temporarily appointed was a permanent vacancy to fill which the training was given to the 1st petitioner.
8. It is submitted by Mr. Kapadia, learned Counsel for the 1st respondent Bank, that a fortuitous, officiating or temporary appointment cannot be considered as a part of regular service of an employee. He relied upon a decision in the case of Masood Akhtar Khan v. State of Madhya Pradesh . The Supreme Court held in this case that if an initial appointment is not made according to the rules, a subsequent regularisation of service of an employee does not entitle him to the benefit of intervening service for seniority. This judgment can have no application in the present case. It is not contended by the respondent Bank at any time that the initial appointment of the petitioner was not in accordance with the rules. There is also no subsequent regularisation of the 1st petitioner's service. In these circumstances the ratio of the Supreme Court judgment cannot apply.
9. In the case of State of Gujarat v. G.G. Desai, the dispute was between direct recruits and promotees to the post of Executive Engineers in the State Government service. While deciding the inter se seniority of direct recruits and promotees belonging to the same cadre, the Supreme Court interpreted rule 7 of the Service Rules and held that pre-selection service as officiating Deputy Engineer cannot be taken into account for the purpose of promotions. In the present case paragraph 20.8 of the bipartite settlement clearly provides for cases in which temporary service of less than three months can be taken into account as probationary period.
10. In the case of Ashok Gulati v. B.S. Jain, on which reliance is placed by Mr. Kapadia, there was a similar dispute regarding seniority between the promotees and direct recruits in the Engineering service of the State Government. The Supreme Court said (in para 22) that according to the accepted canons of service jurisprudence, seniority of a person appointed must be reckoned from the date he becomes a member of the service. The date from which seniority is to be reckoned may be laid down by rules or instructions (a) on the basis of the date of appointment, (b) on the basis of confirmation, (c) on the basis of regularisation of service, (d) on the basis of length of service, or (e) on any other reasonable basis. It is well settled that an ad hoc or fortuitous appointment on a temporary or stop-gap basis cannot be taken into account for the purpose of seniority even if the appointee was qualified to hold the post on a regular basis.
11. In the present case paragraph 20.8 lays down certain special circumstances in which temporary service can be taken into account as part of an employee's probationary period. Looking to the terms of paragraph 20.8. the paragraph appears to us to provide a reasonable basis on which such temporary service can be considered as part of the probationary period of an employee. This paragraph is applicable only in cases where the temporary worker is appointed to fill a permanent vacancy and he has been subsequently selected to fill up that vacancy. In such a situation, his temporary service which has to be of less than three months, can be considered as a part of his probationary period. The decision of the Supreme Court therefore, in Ashok Gulati's case (supra) does not help the 1st respondent Bank.
12. In the premises in our view the Tribunal was clearly in error when it held that para 20.8 does not support the case of the 1st petitioner. The impugned award dated 16th August, 1982 of the Central Government Industrial Tribunal, Bombay in Reference No. C.G IT. 2/24 of 1980 is set aside and the 1st respondent Bank is directed to consider the period of temporary employment of the 1st petitioner under the Memorandum of 14-4-1970 as a part of his probationary period for the purpose of his service with the 1st respondent Bank. The 1st respondent Bank is directed to give to the 1st petitioner all consequential benefits which he may be entitled to. The 1st respondent Bank is further directed to grant a similar benefit to all employees of the 1st respondent Bank who are similarly situated.
Rule is made absolute accordingly with no order as to costs.
Rule made absolute.