Bank of Maharashtra Karmachari Society Holiday Home Pune Maharashtra
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Bank of Maharashtra v/s Bank of Maharashtra Karmachari Sangh, Pune
WRIT PETITION NO.2431 OF 1997
Decided On, 21 August 2008
At, High Court of Judicature at Bombay
By, THE HONOURABLE MRS. JUSTICE NISHITA MHATRE
Mr.A.G. Damle for Petitioner. Mr.S.M. Dharap for Respondent.
Judgment Text
ORAL JUDGMENT
Mr.Dharap who has filed his appearance of the respondent-union states that the respondent has instructed him to withdraw his appearance in the matter as the workman concerned had retired. He, therefore, submits that he no longer appears in the matter.
2.The petitioner bank takes exception to the award of the Central Government Industrial Tribunal dated 23.6.1994 in Reference (CGIT) No.2/32 of 1991. By this award, the Tribunal has allowed the Reference and granted certain reliefs to two employees, Shri Ranade and Shri Athavale.
3.A settlement was arrived at between the petitioner and their employees represented by various trade unions. Under this settlement dated 13.4.1987, certain posts were termed as allowance posts. An allowance post is defined as one in which a workman is assigned certain duties for which special allowance is payable as specified in the bipartite settlement i.e. the settlement arrived at by the nationalised banks with trade unions operating in the banks. The settlement of 13.4.1987 also provided that refusal by an employee who was eligible for such a post to accept it would have to be in writing. Any refusal or unwillingness on the part of the employee debars him permanently from getting the same or any post carrying an higher or equal allowance. The terms of the settlement of 13.4.1987 were supplemented by another agreement dated 27.3.1988.
4.It appears that on 22.7.1989, an offer was made to 9 employees in terms of the settlement of 13.4.1987 for being appointed to the allowance carrying posts which had fallen vacant in December 1987. 7 of these vacancies arose on 1.12.1987. The 8th vacancy occurred on 16.12.1987 and the 9th one on 27.12.1987. All 9 employees who were eligible for being appointed to these allowance carrying posts were offered the posts. Shri Ranade and Shri Athavale were also offered these posts. While 7 employees accepted the posts offered to them at various branches of the bank in Pune, Ranade and Athavale refused to accept the offer made by the bank. Ranade by his reply of 28.7.1989 to the bank contended that he had been offered the posting with the Khadki branch whereas the 7th vacancy had arisen in Karve road branch. According to him, since he was at serial No.8 in the seniority list, others who were senior to him ought to have been offered the post in the Khadki branch first and in the event they had refused that posting, it could have been offered to him. According to Shri Ranade, the petitioner bank had violated the agreement of 1987 by not filling in the vacancies on the agreement of "first vacancy to be filled in first" i.e., the vacancies were to be filled in as and when they occurred. The bank by its letter dated 2.8.1989 informed Ranade that his interpretation was incorrect and that the posts relating to 7 vacancies which had arisen earlier had been offered to 7 persons who were senior to him. This correspondence continued between Ranade and the bank. In fact, by the letter of 25.8.1989, the bank informed Ranade that since it had not received any indication of his having accepted the allowance carrying post unconditionally, the bank had assumed that he had rejected the offer of being appointed to the post.
5.It appears that the union representing the workmen i.e. the respondent herein had raised an industrial dispute which was referred for adjudication and registered as Reference Nos.CGIT-43 of 1990. The terms of reference are as follows:
"Whether the action of the Management of Bank of Maharashtra in relation to its Pune Zone in not allotting allowance carrying post as per principle of first vacancy to be filled in first as per circular No.AX1/ST/40/88 dated 22.03.1988 is justified? If not, to what relief the workmen are entitled to?"
6.This reference was decided by award dated 23.6.1994. The Tribunal concluded that out of 9 persons only two persons were aggrieved by the decision of the bank to post them at certain branches. The Tribunal observed that a separate reference was obtained in respect of those workmen which had been referred for adjudication being Reference CGIT No.2/32/91. The Tribunal also observed that the 2nd reference partly covered the issue before it. However, it held that in the facts and circumstances of the case, it was not possible to conclude that the action taken by the petitioner bank was in breach of principles of filling in the vacancies i.e. "the first vacancy to be filled in first". The Tribunal observed that by accepting the affidavit filed by the petitioner bank, the reference deserved to be dismissed. However, with regard to the two persons, who had not accepted the allowance carrying posts, the Tribunal did not make any observations as a reference in respect of those workmen was already pending before the Tribunal.
7.The parties filed their respective pleadings before the Tribunal in Reference CGIT No.2/32 of 1991. The contentions raised in the statement of claim were similar to the allegations contained in the letter written by Ranade on 28.7.1989 to the bank. The bank's written statement contained denial of the allegations. It was also pleaded that the workmen had refused to accept the post only because the vacancy arose in a branch on the outskirts of Pune, whereas they had worked in Pune city for several years. The union i.e. the respondent herein filed a purshis contending that it did not want to lead any oral evidence in the matter. The Senior Manager working in the zonal office of the petitioner bank was examined by the bank.
8.The Tribunal after considering the evidence on record has held that the post of the Khadki branch was the 7th vacant post as the vacancy occurred on 1.12.1987. On this basis the Tribunal has accepted the Respondent's contention and allowed the reference.
9.However, there is nothing on record to indicate that the Khadki vacancy was in fact the 7th vacancy which occurred on 1.12.1987. The Tribunal, in my view, has erroneously accepted the contention of the Union representing Ranade that the post at Khadki was the 7th vacancy and that it ought to have been offered to the 7 persons who were senior to Ranade. The Tribunal has observed that the petitioner bank had not adopted the principle of "first vacancy to be filled in first" although they were bound to do so in view of the settlement of 1987. This finding is not based on any material on record. Furthermore, the Respondent had not led any evidence in support of its contention that the Khadki post was the 7th vacancy available.
10.In my opinion, the Tribunal has erred in allowing the Reference although it has noted that in an earlier reference i.e. CGIT-43 of 1990 the Tribunal had observed that the allotment of vacancies had been correctly made by the petitioner bank by scrupulously following the principle of "first vacancy to be filled in first" in accordance with the circular dated 22.3.1988. When these observations were made by the Industrial Tribunal in one referenc
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e, another Tribunal could not have traversed beyond these observations in another reference between the same parties. As mentioned earlier, there is nothing on record to indicate as to how the Tribunal has concluded that the 7th vacancy was the Khadki vacancy and that therefore the 7 persons who were senior to Ranade ought to have been accommodated in those posts including the Khadki vacancy. Admittedly, there is no evidence led by the workmen or the union to indicate that the 7th vacancy was the Khadki vacancy and that it should have been offered to the 7 persons who were senior to Ranade and Athavale. In these circumstances, in my opinion, the Tribunal has erred in allowing the reference. 11.The petition is therefore allowed. Rule made absolute. No order as to costs.
Source: https://www.lawyerservices.in/Bank-of-Maharashtra-Versus-Bank-of-Maharashtra-Karmachari-Sangh-Pune-2008-08-21