Court No. - 4
Case :- SPECIAL APPEAL No. - 989 of 2008 Appellant :- Abid Asghar Respondent :- Bank Of India & Others Counsel for Appellant :- G.K. Singh,S.A. Lari,V.K. Singh Counsel for Respondent :- Pankaj Bhatia,R.V. Pandey,Sanjiv Singh
Hon'ble Bala Krishna Narayana,J. Hon'ble Irshad Ali,J.
Heard Sri S.A. Lari, learned counsel for the appellant and Sri R.V. Pandey, learned counsel for the respondents.
This special appeal has been preferred by the appellant petitioner Sri Abid Asghar against the judgement and order dated 18.7.2005 passed by learned Single Judge of this Court in Civil Misc. Writ Petition No. 9689 of 1999.
Brief facts of the case as emerging out from the perusal of the pleadings of the parties are that the petitioner at the relevant point of time was working as accountant in the Bank of India Branch Mau Nath Bhanjan. By an order dated 18.9.1998 passed by respondent no. 2, the service of the petitioner was voluntarily ceased in exercise of power under clause 17 of the Fifth Bipartite Settlement dated 10th April, 1989. The aforesaid order was challenged by the appellant petitioner by means of the aforesaid writ petition in which it was contended that the service of the petitioner could not have been terminated under Clause 17 of the Settlement in view of the fact that clause 17 stood deleted w.e.f. 1.11.1997 pursuant to the Seventh Bipartite Settlement dated 22nd March, 2000.
Learned Single Judge after considering the various provisions of Bipartite Settlement dated 22nd March, 2000 rejected the contention of the learned counsel for the petitioner holding that clause 17 of the Fifth Bipartite Settlement dated 10th April,1989 stood deleted from the date of the implementation of Seventh Bipartite Settlement dated 22nd March, 2000 on 27.5.2000.
It has been contended by the learned counsel for the appellant that the learned Single Judge while holding that clause 17 of the Fifth Bipartite Settlement dated 10th April,1989 stood deleted from the date of enforcement of the Seventh Bipartite Settlement has totally failed to analyze clause 37 of the Settlement in its correct perspective which clearly stipulated that the Settlement shall be binding on the parties for five years from 1st November, 1997, hence, the voluntarily cessation of the appellant services by the impugned order which was passed on 16.5.2001 in exercise of powers under clause 17 of the 1989 of Bipartite Settlement, although on that date the relevant clause 17 stood deleted cannot be sustained and liable to be set aside.
Sri Pandey, learned counsel appearing for the Bank repelling the arguments of learned counsel for the appellant contended that clause 35 of Settlement provides dates on which the various provisions of the Seventh Bipartite Settlement shall take effect and according to clause 35 sub clause 4 of Seventh Bipartite Settlement, clause 17 of the 1987 Settlement stood deleted from the date of the Settlement. Hence, any interference with the impugned judgement and order is wholly unwarranted.
After having heard the learned counsel for the parties at great length, we find that there is no force in the submissions made by the learned counsel for the appellant/petitioner. The service of the petitioner/appellant was voluntarily ceased by an order passed under clause 17 of Fifth Bipartite Settlement dated 10th April, 1989 after issuing notice to the appellant/petitioner. Service of notice on the appellant petitioner was deemed to be sufficient. The appellant petitioner did not respond to the notice and accordingly, he was voluntarily retired by the impugned judgement. The contention of the learned counsel for the appellant petitioner that on the date of passing of the impugned order clause 17 did not exist is wholly misconceived.
In this regard, it would be relevant to reproduce the relevant provisions of Seventh Bipartite Settlement which is herein below :-
"33. Voluntary Cessation of Employment Clause 17 of the Fifth Bipartite Settlement dated 10th April, 1989, shall stand deleted.
"35. Implementation
(a) The various provisions of this Settlement shall take effect from the dates specified hereunder, unless provided to the contrary and the financial benefits emanating therefrom shall be given effect to within a period of 90 days from the date of this Settlement.
(1) Scales of pay, Dearness allowance and consolidated wages to part time employees working for less than 6 hours per week. (01.11.1997)
(2) Provident Fund on 85% of pay pension, Special Pay, Graduation Pay And Professional Qualification Pay (01.04.1998)
(3) Provident Fund on entire Pay Gratuity, House Rent Allowance City Compensatory Allowance Washing Allowance, Hill & Fuel Allowance, Transport Allowance Annual Medical Aid, Hospitalization Expenses, Fixed Personal Pay Paradip Port Town Allowance and Fifth Stagnation increment. (01.11.1999)
(4) Halting Allowance and all other items agreed to but not covered by the above Clauses. (Date of Settlement)
(5) Split Duty Allowance, Cycle Allowance and Overtime Allowance. It is clarified that while calculating the Arrears for the period of the Settlement Uptill 31.10.1999, it the net difference Between the existing total emoluments and The revised total emoluments after Provident Fund deduction is negative, the same shall be ignored. (01.04.2000)
(b) From 01.11.1999, if the revised total monthly emoluments of an employee after deducting Provident Fund fall short of the existing total monthly emoluments after deducting Provident Fund, the difference shall be adjusted to the extent of any other allowance or a monthly benefit of any other type till it gets fully wiped off.
(c) With regard to the 3 week banks viz. Indian Bank United Bank of India and UCO Bank, if the management of these banks find it difficult to make payment of arrears, they may discuss with the Unions in their respective banks and reschedule amicably.
37. Date of Effect and Operation (i) This Settlement shall be binding on the parties for five years from Ist November, 1997, Six months before the Settlement expires, the Unions may submit their charter of demands to the IBA. The negotiations will commence before the last three months of the expiry of the Settlement."
Upon perusal of the aforesaid clauses of the Bipartite Settlement 2000, it appears that as per clause 35 (i) the settlement became binding on the parties with effect from 1st November, 1997 i.e. prior to the passing of the impugned order and at the first flush it may appear that clause 17 stood automatically deleted and could not have been invoked by the management while passing the impugned order in the year, 1998, however, upon a closer scrutiny of clause 35 of the settlement, we find that clause 17 of the Fifth Bipartite Settlement stood deleted from the date of settlement i.e. 27th March, 2000 and was not deleted with retrospective effect. Clause 35 (4) of the Seventh Bipartite Settlement, as quoted aforesaid, indicates the date when the various items of the Settlement were to be made effective and a perusal of this clause 35 (4) indicates that clause 33 would become effective from the date of Settlement i.e. 27th March, 2000.
In our opinion, clause 33 of the Seventh Bipartite Settlement is covered under Clause 35(a)(iv) of the settlement. Thus, we do not find that learned Single Judge has committed any illegality or legal infirmity in dismissing the writ petition.
Subject to aforesaid observations, the special appeal is accordingly, dismissed.
Order Date :- 23.2.2018 Manoj