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

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:

"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

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.

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

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.

Hindustan Lever Ltd. -v. - Ram Mohan Ray & Others, (1973) 4 SCC 141.

supra-1.

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

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.

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

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

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

supra-1.

concession 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.

20. I do not find any infirmity far less any jurisdictional error

committed by the Tribunal while passing the award. No case for