JUDGMENT
1. The first respondent-workman was at the relevant time, working with the petitioner-bank as Special Assistant in Bombay. In June, 1982 there were three vacancies for Accountants in the regions i.e. Bombay and Pune where the first respondent was working as Special Assistant. According to a settlement arrived at between the Punjab National Bank and the All India Punjab National Bank Employees Federation on 7th March, 1978, the 37 eligible candidates for the promotion to the post of Accountants were interviewed, including the first respondent and 11 were selected. The first respondent was at serial No. 2 in the selected list. He was offered the post of the Accountant on promotion by a letter dated 6th July, 1982 and was posted at Pune i.e., within the region in which he was working as per the terms of settlement mentioned hereinabove. However, by a letter dated 8th July, 1982 the Union representing the first respondent wrote to the petitioner-bank raising dispute that the first respondent on promotion could not have been posted at Pune as he was an office-bearer of a Committee of the union and was activist trade union leader in Bombay. It was also demanded of the bank that he (first respondent) be posted at Bombay alone and in any case one S. R. Marathe who was working as an Accountant in Bombay had desired to be transferred to Pune and, therefore, he be transferred to Pune and in his place the first respondent be retained in Bombay. The petitioner-bank wrote back to the first respondent a letter dated 14th July, 1982 stating that his representation for being retained at Bombay was rejected and that since he had failed to report to the place of his posting within a stipulated time, he was debarred from promotion/officiating for a period of one year from the date of the refusal to join his new posting. Feeling aggrieved, the first respondent filed a complaint under Section 33A of the Industrial Disputes Act, 1947 before the second respondent Industrial Tribunal as an industrial dispute under Reference No. CGIT-2/1 of 1982 was pending. The second respondent by his impugned award dated May 19, 1983 granted relief to the first respondent that if anybody who was junior to the first respondent had officiated during the relevant period under the same cadre or lower in the post of an Accountant, the extra allowance earned by such incumbent shall be calculated and the petitioner-bank shall pay the same to the first respondent. It is pertinent to note here an admitted fact that the first respondent was promoted as an Accountant in the usual course afterwards.
2. Being aggrieved by such an award made by the second respondent, the petitioner-bank filed the present writ petition.
3. At the hearing, Mr. Talsania, learned Advocate appearing on behalf of the petitioner-bank, submitted that since the first respondent refused and/or failed to report to his new posting on promotion as an Accountant at Pune within the stipulated time, the petitioner-bank was justified in informing him by the letter dated 14th July, 1982 that he was debarred for promotion and officiating as an Accountant for a period of one year which in the submission of Mr. Talsania was in accordance with clause No. 7 of the memorandum of settlement between the All India Punjab National Bank Employees’ Federation and the petitioner-Bank on 7th March, 1978. The further submission of Mr. Talsania is that there was no action taken by the petitioner-bank which was prejudicial to the service condition of the first respondent. A complaint under Section 33A of the I.D. Act was not maintainable and, therefore, the award passed by the second respondent suffers from errors apparent on the face of the record and the same should be quashed and set aside. In reply, Mr. Udeshi, learned Advocate appearing on behalf of the first respondent, urged that the letter dated 8th July, 1982 written by the Union for and on behalf of the first respondent was neither a refusal nor failure on the part of the first respondent to join duties at his promoted posing but it was merely a representation that he be accommodated at Bombay and instead S. R. Marathe who wanted transfer to Pune be posted there as an Accountant. In the submission of Mr. Udeshi, therefore, the letter dated 14th July, 1982 was prejudicial to the service conditions of the first respondent and, therefore, the complaint under Section 33A of the I.D. Act was maintainable and the award passed by the second respondent is just and proper and need not be interfered.
4. With a view to understand the rival contentions raised on behalf of the parties it may be noted here that the first respondent was promoted to the post of Accountant in the Junior Management Grade Scale-I in fulfilment of clause No. 5 of the settlement dt. 7th March, 1978 between the petitioner-bank and All India Punjab National Bank Employees’ Federation. It may also be noted here that the consequences arising out of his refusal to taken up the promotion or failure to report at the place of posting were covered by clause 7 of the said settlement. The crucial point, therefore, is whether the letter dated 8th July, 1982 written by the Vice-President of the Punjab National Bank Staff Union to the petitioner-bank amounts to refusal to take promotion or failure to report at the place of the new posting of the promotion. The said latter reads as under :
PUNJAB NATIONAL BANK STAFF UNION
(REGD.)
Affiliated to NCBE
PNB HOUSE,
Fort, Bombay-400 001,
Ref. No. GS/PNBSU/82 Date : 8.7.1982
The Asst-General Manager,
Punjab National Bank,
Express Tower,
Bombay-21.
Dear Sir,
Ref : Our General Secretary Shri
G. L. Kadam Spl. Asst. BO Dadar,
K.C. Bombay.
The above employee’s case has to be considered as a special category case for transfers and promotion. Mr. Kadam is our General Secretary and has been promoted. The management in one of the Industrial Relation meeting has decided that principal office bearers of any union will not be transferred and their promotion will be made in the same place, city or even branch. Many office bearers and even committee members and activists of other union have been promoted in Bombay and some in the same branch.
We, therefore protest as to how only in case of our General Secretary this decision of I.R. Meeting has been altered to our prejudice. Moreover, there are some pending disputes in Tribunal at Bombay and we have his need pending and he has various statutory duties to perform here.
We, therefore, demand that Mr. Kadam be promoted here in Bombay itself and we know that one Act. Mr. S. R. Marathe of BO PNB House, Bombay has made a request for his transfer to Pune, as he belongs to Pune and often for family reasons has to go there. His services there will be more useful and therefore you may transfer Shri Marathe to Pune and Shri Kadam be posted in his place and that will please both.
Thanking you, Yours
faithfully,
Sd/-
(S. Y. Pikle)
Vice-President.
The tenor of the language used in this latter clearly shows that the Union representing the first respondent, instead of taking up the promotion by the first respondent, failed disputes and demanded that the first respondent be posted in Bombay and Bombay alone. The Union also demanded that in place of the first respondent one S. R. Marathe who was working as an Accountant in Bombay be transferred to Pune. In my opinion this kind of letter written for and on behalf of the first respondent amounts to refusing to take up the promotion or at any rate there was failure on the part of the first respondent to join his duty at the place where he was posted after being promoted. The consequence of such an act of omission or commission on the part of the first respondent would necessarily be debarring him from promotion/officiating for one year from the date of refusal or failure to report at the place of the new posting within the stipulated time. Therefore, the petitioner-bank was justified in addressing letter dated 4th July, 1982 debarring him form promotion as well officiating as Accountant for a full one year with effect from 12th July, 1982. The said letter as under.
"PNB-K.C. Dadar, Bombay-14 Inter Office Memo, DKC/S/101 14-7-82 Shri G. L. Kadam, Special Assistant, B/o K.C. Dadar, Bombay-14.
You were offered promotion as Accountant to be posted at B/o. Nanapeth, Pune, which you refused. You representation for posting at Bombay on promotion as Accountant was not accepted by the Regional Manager, Bombay.
As such you are debarred from promotion as well as officiating as Accountant for full one year w.e.f. 12th July, 1982.
Sd/-
MANAGER”
I am not able to persuade my self to agree with the submission of Mr. Udeshi that this letter by the bank to the first respondent amounts to taking an action against the first respondent by the petitioner-bank which can be said to be prejudicial to the service conditions of the first respondent. In this view of the matter, the second respondent Tribunal was in error in passing the impugned award as he did, the same deserved to be quashed and set aside. However, I am told at the Bar that admittedly a very meager sum of Rs. 600/- would be payable to the first respondent under the impugned award and that being so, I direct the bank that the said small amount of Rs. 600/- shall be paid to the first respondent as ex gratia amount within a period of two weeks without prejudice to the rights and contentions of the petitioner-bank raised in this petition.
5. The petition accordingly stands disposed of with no order as to costs.