- (1.) IN this application under Article 226 of the Constitution, the petitioner, Grindlays Bank Ltd. challenges an award dated 4th April, 1977 made by the central Government Industrial tribunal. Before the Tribunal there was a reference of the following dispute : "whether, the management of chowringhee Road Branch of the grindlays Bank. Calcutta is justified in posting Shri Nagina Ram, a Junior staff to the post of daftry, overlooking the claim of shri Ramdeo Pandey a senior Sub staff If not, to what relief is the aggrieved workman entitled ?"
(2.) THE case of Ramdeo Pandey was taken up by the appropriate Union and the reference was at the instance of the Union. The contention of the union was that the petitioner Bank had selected one Nagina. Rain as Daftry with effect from 1st September, 1975 overlooking his seniority and therefore the union wanted Ramdeo Pandey to be appointed to the post which carried a special allowance and the Bank should be ordered to pay arrears of allowance due to him from that day. It was contended on behalf of the petitioner Bank that the practice of promotion was not followed among the subordinate Staff whenever a member of the staff was put in charge of the Daftry work which carried a special allowance and further that Ramdeo Pandey had refused the offer to the post of Daftry when it was made to him on 24th November, 1973 and as such he had lost his right to claim the special allowance post of Daftry which fell vacant on a permanent basis with effect from 1st September, 1975. It is dear, therefore, that a post of Daftry fell vacant. The said post carried a special allowance. It is not apparent and the Tribunal had not proceeded on that basis that there was question of any promotion, as such, but it was a clear case of selecting a staff for working as Daftry, which as mentioned before, carried a special allowance. In this connection, it may be relevant to refer to the bipartite settlement dated 19th october. 1966. It is dear that there was nothing, in the bipartite settlement or earlier settlements, that the posting of members of subordinate staff to the post which carried special allowance should be on the seniority basis. The tribunal has so held and, in my opinion, rightly. However, learned counsel for the respondents drew ray attention to clause 5. 11 of the settlement of 19th October, 1966 which reads as follows :- "5. 11 Wherever a bank requires a workman to work in a post carrying a special allowance it will normally be done by an order in writing. " clause 5. 13 of the said settlement is as follows : "5. 13 The standardization of nomenclature as aforesaid should not by itself lead to withdrawal of special allowances from persons already drawing them except where specifically provided in this Settlement. Subject to this banks will be free to reallocate the duties of any workman to bring them in conformity with the duties specified in the appendix 'b' hereto. Where for the first time a special allowance provided for in this settlement is introduced in an office, in reallocating the duties, preference will be given from among those who are already performing the appropriate duties. In specifying the duties it is not the intention that in each office branch posts should be created in each category for which special allowance has been agreed to".
(3.) THE Tribunal after discussing the evidence came to the conclusion that there was no satisfactory evidence that when the post of permanent Daftry became vacant, Ramdeo Pandey had refused to accept the post. On analysis of the evidence, the Tribunal was of the view that there was no evidence that any offer was made to Ramdeo Pandey on 1st September, 1975 when the post had become vacant on permanent basis. The Tribunal, further, held that the fact that Ram Deo Pandey had refused to accept the temporary post of Daftry on 24th November,1973 was not a ground or circumstance to hold that he was not entitled to get the post when it fell vacant on permanent basis. This was also admitted thai Nagina Ram was junior to Ramdeo Pandey. On analysis of the facts and circumstance the Tribunal found that there was nothing on evidence to show that Ramdeo Pandey never worked as daftly. The Tribunal also found that there was no order passed in writing when Nagina Ram was appointed to the post of Datary on 1st september, 1075. It was also found by the Tribunal that the work of Datary did not require any special skill. The Tribunal had noted that Ramdeo Pandey had in fact worked as Datarys in November, 1972 and January, 1973 as extras. There was nothing on record also, according to the Tribunal, which indicated that the work of Ramdeo Pandey was unsatisfactory. In those circumstances the Tribunal was of the view that overlooking the claim of Ramdeo Pandey, who was senior subordinate staff in relation to Nagina ram. the selection of Nagina Ram was not justified which amounted to discrimination of one workman against the other. The Tribunal thereupon observed as follows : "when there is a post which carries a special allowance and that post is given to a junior member of the subordinate staff, the senior member of the staff is definitely prejudiced and that amounts to a discrimination of one staff against the other and it is to avoid such discrimination it is necessary that seniority amongst the subordinate staff is maintained as and when selection is made to the post of daftly. In Para 5. 13 on the special allowance in the settlement dated 19. 10. 66 it stated that in re-allocating duties preference would be given from amongst those who are already performing the appropriate duties which carry special allowance. It is admitted hat Sri Ramdeo Pandey acted as daftry in 1972 and 1973. There is no evidence that Nagina Ram acted its daftry any time before 1972 and 1973. So, the fact that Ramdeo pandey acted as daftry earlier than nagina Ram was a circumstance which should have weighed with the bank when the permanent post of daftary was offered to Nagina Ram. In this regard the fact that no order in writing was given either to Ramdeo Pandey or Nagina Ram is a circumstance to show that the Bank had no reasonable ground to refuse the daftary's post to Ramdeo Pandey. It is apparent from the circumstances that the failure on the part of the Bank to choose Ramdeo Pandey as daftry is an act of discrimination and that it cannot be allowed to stand. The Bank is not justified in overlooking the claim of Ramdeo Pandey, a senior man to Nagina Ram. ";