Delhi Nagrik Sehkari Bank Ltd. vs Delhi Nagrik Sehkari Bank ...
2007 Latest Caselaw 181 Del

JUDGMENT

Shiv Narayan Dhingra, J.

1. By this writ petition, the petitioner has challenged the validity of award dated 5th November, 1996 passed by Industrial Tribunal-I( in short 'the Tribunal'), Delhi, whereby the Tribunal directed the petitioner to prepare the seniority list of Supervisors and Accountants in accordance with the assurance given to the workmen in letter Ex. MW1/2 to Ex. MW1/10 and directed that the workmen/respondent would be treated as seniors to the Supervisors and their seniority shall be protected as against employees promoted with effect from 1.4.1981. The Tribunal directed that a fresh seniority list of Accountants be prepared on the basis of vacancies which existed as on 1st October, 1990 for post of Managers. Fresh selection of Managers be made in accordance with Rule 25 of staff selection rules on the basis of revised seniority list and if the respondents are found eligible for promotions as managers in the year 1990 or in subsequent years, they will be entitled for payment of wages of managers from the said date.

2. Briefly, the facts are that a dispute was referred to the Tribunal in December, 1991 in following terms:

Whether S/Shri Jagmohan, Ram Pal Tanwar, Praveen Jain, Naresh Chand Jain, S.K. Jain, S/Smt. Renu Gupta, Manju Garg, Vijay Gupta and Shri Neeraj Tyagi have been superseded and are entitled to be promoted as managers and if so, what directions are necessary in this respect

3. The background of the dispute is that the above named respondents/officers were working as clerks in the petitioner bank in 1981-82 and they were not promoted Along with other colleagues as Supervisors. They raised an industrial dispute being ID No. 279 of 1983. They alleged that they had withdrawn their industrial dispute on the basis of an assurance given by the Dr. Subash Bhargava,, Vice Chairman of the Bank that they would be promoted with retrospective dates and their seniority shall be kept intact. They were not to be paid back wages. Only on this assurance they withdrew the industrial dispute. However, despite assurance, their seniority as Supervisors was not restored to them and the management did not fulfilll its promise. Since their seniority was not restored, they were not considered for promotions to the post of managers in the meeting of Board of Directors held on 4th October, 1990 and they were bypassed. They alleged that selection of managers made on 4th October, 1990 was on the basis of wrong seniority list. However, they admitted that out of 9 workmen, Ram Pal Tanwar, Manju Garg, Jagmohan and Naresh Chand Jain were promoted as managers with effect from 21st July, 1992. Their contention is that they were entitled to be promoted in October, 1990 and their promotions in July, 1992 was not proper. Hence, they raised above Industrial dispute. Management in its written statement took the objections, inter alia, that no such assurance as claimed by the workmen was given to them regarding their seniority as against the employees already promoted. The Vice Chairman Mr. Subash Bhargava had no authority to give such assurance nor such assurance was given. The letters of Mr. Subash Bhargava, relied upon by the workmen was denied by the management and it was stated that if any such letter was written, it was without any competence or authority.

4. The Tribunal, after recording evidence, came to conclusion that Mr. Subash Bhargava was the Vice Chairman of the Bank and he did give assurance to the workmen about their seniority being maintained. The letter written by Mr. Bhargava cannot be said to be without any authority. The Tribunal relied upon the Resolution passed by the Bank to infer that Mr. Bhargava was competent to give such assurance being Vice Chairman of the Bank and Chairman of Selection Sub Committee.

5. The minutes of the meeting of the Bank held on 24.12.1981, giving authority to Mr. Bhargava concerning the employees read as under:

a) The following recommendations of the staff selection committee were considered by the staff selection committee were considered by the Board of Directors and the following decision were taken:

i) Letter dt. 21.12.1981 signed by four suspended employees namely Sh. R.C. Jain, B.K. Jain, Naresh Chand Jain and Ram Singh is formated to the Board of Directors for consideration in the light of the decision held by the chairman with the application in presence of the board members viz. Dr. Subash Bhargava, Ram Kishan, Hargovind Gupta, Hari Ram Gupta and O.P. Garg. the staff select committee recommends that the matter be entrusted to Dr. Subash Bhargava, Vice-Chairman and Shri Ram Kishan, Joint Secretary for fair settlement with the applicants to the complete withdrawal of all their cases against the Bank from the court including Labour Consultant.

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e) As a result of efforts made by Dr. Subash Bhargava, Vice-Chairman the suspended employees of the Bank have expressed regrets and assured of faithful and honest work in the best interest of the Bank. Some of the employees have moved the conciliation officer collectively/individually and some have moved the Labour Court. After withdrawal of all matters, the Board might consider individual cases favorably and may revoke suspension orders of the concerned employees.

6. Another meeting of Board of Directors of the Bank was held on 28.1.1992 and following decision was again taken in respect of above employees:

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Res No. 16(e). As a result of efforts made by Dr. Subash Bhargava, Vice Chairman, the suspended employees of the bank have expressed regrets and assured of faithful and honest work in the best interest of the bank. Some of the employees have moved the Conciliation Officer Collectively/Individually and some have moved the Labour Court. After withdrawal of all matters, the Board might consider individual cases favorably and may revoke suspension orders of the concerned employees.

7. Dr. Subash Bhargava also wrote letter to the employees, a copy of of which is as under:

Dear Sir

On going through the records of the Bank, it is found that you have filed a case/cases in the court/courts against the Bank. You are, therefore, advised and requested to withdraw the court case/cases against the Bank to bring about a congenial atmosphere.

Yours faithfully,

(Dr. Subash Bhargava) Vice-Chairman

8. The record shows that the workmen had withdrawn the dispute only after their suspension was revoked and they were given promotions on 6th October, 1983. The promotion letters/memos of the workmen read as under:

MEMO

Shri Parveen Kumar Jain is hereby informed that he has been promoted to the cadre of Supervisor w.e.f. 1.10.1983 as per the decision of the Board of Directors in their meeting held on 30.9.1983. He will be on probation for a period of one year w.e.f. 1.10.83. He will be getting the salary and allowance as per existing staff service Rules applicable to cadre of Supervisor w.e.f.1.10.83.

Sd/-

6.10.83 Administrative Officer.

9. Similar letter were issued to the respondents, according to which they were given promotions with effect from 1.10.1983. However, three workmen namely Mrs. Manju Garg, Neeraj Tyagi and R.P. Tanwar were given promotions vide similar letter dated 7th October, 1982 with effect from 1st October, 1982. The letter dated 7.10.1982 written to Ms. Manju Garg reads as under:

Miss Manju Garg is hereby informed that she has been promoted to the cadre of Supervisor w.e.f. 1.10.82 as per the decision of the Board of Directors in their meeting held on 30.9.82.

She will be on probation for period of one year w.e.f 1.10.82. She will be getting the salary and allowance as per existing staff service Rules applicable to cadre of Supervisor w.e.f. 1.1.82.

Sd/-

GENERAL MANAGER

10. It is clear from the letters promoting the respondents that their promotions were not done with retrospective effect. Neither any assurance of seniority was given to them in the promotion letter nor it was stated in the promotion letters issued to them that they will rank senior of anyone else but they would not be entitled to the pay for the period when they were not working as supervisors. The respondent had withdrawn the industrial dispute only after getting the promotion letter in which no assurance of seniority was given. While making the statement before the the Tribunal in ID No. 279/1983, they had not stated anything about the seniority having been assured to them or any compromise letter having been issued to them or any letter having been given to them by Mr. Bhargava.

11. The record also shows that the seniority list of the supervisors was circulated by the administrative office of the petitioner bank in February- March, 1985 and objections were invited. The Signatures of some of the respondents appeared receiving copy of seniority list. The respondents jointly and individually filed their objection. Shri Praveen Jain, Neeraj Tyagi along with some other employees filed objections on 19.3.1985 stating therein that they have common objections. Neeraj Jain field separate objection to the seniority list. The respondent before the Tribunal had taken the plea that they learnt about the seniority list when the records of the bank were computerized and they received the computerized slip showing their seniority number. This plea is obviously false because the copies of their objection letters have been placed on record by the petitioner and were before Industrial Tribunal when the Tribunal considered the matter. The objections filed by the respondents were turned down and the seniority list prepared by the bank was maintained and the bank considered the same seniority list when the promotions to the posts of managers were considered. The Tribunal has heavily relied upon the letter allegedly written by Mr. Bhargava to the workmen holding that the workmen/respondent were given assurance that their seniority shall be kept intact. If this letter had been written to the workmen, as is claimed, the workmen would not have withdrawn the industrial dispute on receiving promotion letters by which they were not given seniority or retrospective promotion over any of the employees already promoted. Three of the workmen were given promotion form 1.10.1982 while the rest five were promoted w.e.f. 1.10.1983. They could not lay any claim on seniority before the date of promotion since promotion was not made retrospectively. The seniority list in each cadre has to be from the date of appointment in the cadre or from date of promotion in the cadre and cannot be from any presumed date. The respondents were appointed as supervisors in 1982-83. They could not claim seniority from 1981. The assurance of Mr. Bhargava even if given, had lost its value when the actual promotion orders were given to the respondents and the respondent did not raise any dispute about their seniority or claimed back date promotion, rather they withdrew the industrial dispute after obtaining promotion letters. The Industrial Tribunal has ignored all documents which were proved on record including promotions letter, minutes of the meeting of Board of Directors, appointment letter etc. In the board of Directors meeting, reproduced above, no where it is stated that these employees shall be given retrospective promotions. The only assurance given is that their cases shall be considered sympathetically. Their suspension was revoked and they were given promotions. The Tribunal also did not consider that these employees had filed objections against the seniority list and their objections were turned down. They did not approach any forum against turning down of objections and upholding of seniority list in the year 1985 and took false plea that they learnt about seniority list for the first time in August/September 1990. In Yaswant and Ors. v. UOI AIR 1988 SC 662 it is held:

It is well settled that any one who may feel aggrieved with an administrative order of decision affecting his right should act with due diligence and promptitude and not sleep over the matter. Raking of old matters after a long time is likely to result in administrative complications and difficulties and it would create insecurity and instability in the service which would affect its efficiency. The petitioners are therefore not entitled to challenge the validity of the Railway Board's Circular dated July 2, 1970 after 11 years and their challenge is bound to fail on this ground alone.

12. Moreover, the respondents were superseded at the level of supervisor in the year 1981 after which they raised the industrial dispute and they were promoted in 1982-83 as a result of compromise. The promotion letters were issued to them promoting them from 1.10.1982 and 1.10.1983 without giving them any right of seniority over the person who had already been promoted. They could not claim seniority over those persons who were already holding posts on the ground that they ought to have been promoted in the year 1981. If they were concerned about their seniority and promotions since 1981 they would have refused to accept the promotion letters and not withdrawn the industrial dispute which was pending exactly for the same relief and would have got a decision from the Tribunal. Since they had withdrawn the dispute from the Tribunal after being promoted in 1982-1983, they are estopped now from agitating the same issue again of claiming promotion from 1981. The principle of estoppel by conduct is applicable to them.

13. The petitioner in its written statement and evidence before the Tribunal stated that few of the respondents were considered for promotion in 1990 but they were not found fit. The Tribunal considered this is 'a funny reason' for not promoting the respondents. I consider that the reasons given by the petitioner were not in any manner funny. The suitability for promotion is to be considered by the management. It is settled law that promotion is not a matter of right. An employee has only a right to be considered for promotion. Once the petitioner has considered the respondents for promotion and found them not fit due to poor performance etc, the Tribunal should have kept its hands off. The Tribunal cannot usurp in the administrative rights of the management and cannot manage the affairs of the bank or the affairs of its personnel. It is the management who is the best judge of the performance of its employees. The Tribunal had no yardstick to measure the performance of the employees of the bank, so that Tribunal could not have brushed aside the evidence of the management about the reasons of non promotion by terming it as 'funny'.

14. The Tribunal was told that it should not set aside the seniority list as there was no reference in respect of seniority list. If the Tribunal had intended to set aside the seniority list and other persons were going to be affected, the Tribunal should have given notice to the other persons who were going to be affected and would become juniors. This Court in Management of Ashoka Hotel v. Govt. of the National Capital Territory of Delhi and Ors. WP(C) No. 111 of 1997 observed as under:

The respondents had also not made others, who were affected by the order of the Tribunal, as party to dispute. Whenever a Tribunal considers the case of promotion of a person on the ground that his junior has been promoted of other, all affected persons should be given notice and should be heard, so that, they are not condemned unheard. Since the decision of the Tribunal in respect of promotion and seniority affects other employees of the organization, it is necessary that the Tribunal should make them necessary parties in the dispute. Although, this was not done and the award of Tribunal was implemented that cannot be a ground to give same relief to others. Committing another mistake does not rectify the earlier mistake, ' two wrongs do not make one right'. I consider that Tribunal could not have decided the reference without giving notice to the other affected employees. In Rajbir Singh HFS II v. State of Haryana and Anr. 1996, 2SSC 19, Supreme Court declined to express any opinion on merits and dismiss the petition on the ground that one of the employees, Mr. M.P. Sharma, who was going to be affected was not made party to the petition; order of Supreme Court reads as under:

We decline to express any opinion on merits since M.P. Sharma, who was appointed to an additional post as a general candidate pursuant to the direction issued by the High Court in Writ Petition No. 13700 of 1990, on 8.7.1990 while the appellant was regularly selected by the Public Service Commission and appointed earlier to him, is not made a party to these proceedings. The main thrust of the agreement is on inter se seniority between the appellant and M.P. Sharma. But in the absence of M.P. Sharma being imp leaded as a party respondent to these proceedings, we cannot go into the question. Under these circumstances, we do not find that though the High Court dismissed the writ petition in liming, it would be open to the appellant to approach the High Court, if so advised, to file a fresh writ petition impleading the affected parties and seek his remedy according to law.

15. In Ramrao and Ors. v. All India Backward Class Bank Employees Welfare Association and Ors. 2004 2SSC(76), Supreme Court observed as under:

It is true that the order of promotion was in question in Writ Petition No. 1551 of 1990 at the instance of one Ashok but even in the said writ petition the promotees were not imp leaded as parties. As in the case of the Association, even in the writ petition filed by Ashok, the order of de-reservation passed by the Union of India or NABARD or the sponsor Bank had not been questioned. Admittedly, the Union of India or NABARD were not parties in the said writ petitions. An order issued against a person without impleading him as a party and, thus, without giving him an opportunity of hearing must be held to be bad in law. The appellants herein, keeping in view the fact that by reason of the impugned direction, the orders of promotion effected in their favor had been directed to be withdrawn, indisputably, were necessary parties. In their absence, therefore, the writ petition could not have been effectively adjudicated upon. In absence of the ?promotees? as parties, therefore, it was not permissible for the High Court to issue the directions by reason of the impugned judgment.

16. I consider that the Tribunal passed the above award contrary to law and facts proved on record. The award of the Tribunal dated 5th November, 1996 is per se perverse and is liable to be set aside and is hereby set aside. The writ petition is allowed. No orders as to costs.