1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION LETTERS PATENT APPEAL NO.172 OF 2001 IN WRIT PETITION NO.5874 OF 1997 Union Bank of India through the Chairman & Managing Director, Union Bank Bhavan, 239, Vidhan Bhavan Marg, Nariman Point, Mumbai - 400 021. ..Appellant. V/s. 1. Union Bank of India Employees Union, Pune, C/o. Union Bank of India, Pune Camp Branch, Pune 411 001. 2. Shri S.S. Hirurkar, Industrial Tribunal, Maharashtra, Pune, having his office at P.M.T. Commercial Building, Swargate, Pune 411 037. ..Respondents. Mr. A.D. Shetty Advocate for appellant. Mr. Virat H. Bhadha – authorized representative of respondent No.1. CORAM : A.M. KHANWILKAR AND J.P.DEVADHAR, JJ. JUDGMENT RESERVED ON 21ST NOVEMBER, 2009. JUDGMENT PRONOUNCED ON 27TH NOVEMBER, 2009. 2 JUDGMENT : (PER J.P.DEVADHAR, J). 1. In this letters patent appeal, the only question canvassed before us is, whether under the Bipartite Settlement dated 19th October, 1966, an employee of the bank who is temporarily asked to perform duties attracting special allowances is entitled to that special allowance even on the day on which he is on leave ? 2. The appellant is a nationalised bank having branches throughout India. The appellant employs more than 30,000 employees consisting of workmen, popularly known as "Award Staff” and Officers in the management cadre. 3. As per the Bipartite Settlement dated 19th October, 1966, the appellant bank was liable to pay special allowances to the workmen subject to the conditions laid down therein. Para 5.6, 5.10 and 13.28 of the said Settlement are relevant for the purpose of this appeal. They read as under:- 5.6 The special allowances prescribed above are intended to compensate a workman for performance or discharge of certain additional duties and functions requiring greater skill or responsibility, over and above the routine duties and functions of a workman in the same cadre. In order to be entitled to a special allowance, such additional duties and functions should constitute the normal part of the duties and functions performed or discharge by a workman. Special allowances are not intended to be paid for casual or occasional performance or discharge of such duties / functions. It would however, be not necessary that a workman should continue to perform such duties or discharge such functions, whole time, in order to be entitled to such allowance. 5.10 The special allowance would continue to be drawn by a permanent incumbent while on leave. A workman who is asked to work 3 temporarily in a post carrying a special allowance would be entitled to such a special allowance pro-rate for such period during which he occupies that post. 13.28 A workman on casual leave shall be entitled to pay and allowances as if he was on duty. 4. The respondent No.1, a registered Trade Union, claimed that in view of para 5.10 and 13.28 of the Bipartite Settlement dated 19/10/1966, the award staff who are temporarily assigned the duties are entitled to special allowances on Sundays, holidays and even when on leave. As the said demand was not met, the respondent No.1 raised a dispute which was admitted in conciliation. On receipt of failure report from the concerned officer, the Central Government made a reference to the Industrial Tribunal. By the impugned award dated 12th March, 1997 the Industrial Tribunal, Pune allowed the reference and directed the Bank to pay special allowance to all the concerned temporary incumbents with retrospective effect from the date of reference i.e. from 12/1/1996. 5. Being aggrieved by the aforesaid order, the appellant filed the above Writ Petition No.5874 of 1997 which was dismissed by the learned Single Judge by an order dated 8th December, 1997. Challenging the aforesaid order, the present Letters Patent Appeal is filed. 6. Mr. Shetty, learned counsel appearing on behalf of the appellant submitted that the appellant bank is not disputing the correctness of the impugned orders in so far as they require the bank to pay special allowances to a temporary incumbent on Sundays and holidays and restricted his 4 argument only with regard to the direction given by the Industrial Tribunal which requires the bank to pay special allowances to a temporary incumbent even for the day when he is on leave. His argument is that as per the bipartite agreement dated 19-10-1966, a permanent incumbent would be entitled to the special allowance even while on leave but the temporary incumbent who is assigned that work would not be entitled to that allowance on the date on which he is on leave. 7. Mr. Bhadha, the authorised representative of the respondent No.1 on the other hand while supporting the impugned orders, submitted that no distinction can be made between a permanent and temporary incumbent, because, as per para 5.10 of the Bipartite Settlement, even a temporary incumbent is entitled to special allowances during the period he is entrusted with the work attracting special allowances. Therefore, no fault can be found in the impugned orders, wherein it is held that a temporary incumbent who is asked to perform the duties attracting special allowances would be entitled to that allowances even when he is on leave. 8. Relying upon a decision of the Apex Court in the case of P. Savita & Ors. V/s. Union of India reported in AIR 1985 Supreme Court 1124, Mr. Bhadha submitted that if the contention of the appellant is accepted, then it would amount to practicing discrimination between the permanent incumbent and a temporary incumbent who are similarly situated. He submitted that if the permanent incumbent is entitled to special allowance while on leave, then, there is no reason as to why the special allowance 5 should be denied to a temporary incumbent when he is on leave. Accordingly, Mr. Bhadha submitted that there is no infirmity whatsoever in the orders impugned in the appeal and the appeal is liable to be dismissed. 9. We have carefully considered the rival submissions. 10. At the outset, we may note that the appellant bank is not disputing its liability to pay special allowances to a permanent incumbent who is on leave. The appellant bank is also not disputing its liability to pay special allowances to a temporary incumbent who is asked to perform duties attracting special allowances on Sundays and holidays. 11. The only dispute raised in this appeal is, whether the Industrial Tribunal as well as the learned Single Judge were justified in holding that the appellant bank is liable to pay special allowances to a temporary incumbent who is asked to perform duties attracting special allowances even when he has not performed those duties attracting special allowances and has infact proceeded on leave? 12. Para 5.10 of the bipartite agreement specifically provides that a permanent incumbent would be entitled to “special allowances” even while on leave. The said para 5.10 further provides that a workmen who is asked to work temporarily in a post carrying a special allowance would be entitled to such a special allowance for the period during which he occupies that post. However, para 5.10 does not provide that the temporary incumbent who is 6 asked to perform duties attracting special allowances would be entitled to the special allowances even while on leave. Therefore, the fact that under para 5.10 of the settlement a temporary incumbent who is asked to perform duties attracting special allowances is entitled to special allowances, it does not mean that such employee would be entitled to special allowances even while on leave. In other words, entitlement of special allowances under para 5.10 of the settlement is restricted to a temporary incumbent who actually performs the duties attracting special allowances and not when he is on leave. 13. It is pertinent to note that para 13.28 of the bipartite settlement which provides that a workman on causal leave shall be entitled to pay and allowances as if he was on duty, does not provide that a temporary incumbent who is asked to perform the duties attracting “special allowances” would be entitled to “special allowance” even when such temporary incumbent is on leave. Thus, from the clauses in the bipartite agreement, it is crystal clear that the special allowances are payable to a “permanent incumbent” even when he is on leave; whereas a workman who is asked to work temporarily in a post carrying a special allowance would be entitled to special allowance for such period during which he occupies that post and not when he is on leave. For, a temporary incumbent on leave cannot be said to be occupying the post as such. Besides, there is no provision in the bipartite agreement for payment of “special allowances” to a “temporary incumbent” who is asked to perform those duties, even during the period when he proceeds on leave. 7 14. Reliance placed on the decision of the Apex Court in the case of P. Savitra & Ors. (supra) does not support the case of the respondent No.1. As held by the Apex Court in the above case, there must be parity in pay scales between two groups holding identical posts and discharging similarly duties. However, the said decision has no application to the facts of the present case, because, under the settlement, the special allowances are liable to be paid to a permanent incumbent while on leave and also to a temporary incumbent who in the absence of the permanent incumbent performs those duties attracting the special allowances. Therefore, as per the settlement dated 19-10-1966 the permanent incumbent on leave as well as the temporary incumbent who in the absence of permanent incumbent performs the duties attracting special allowances are entitled to special allowances. However, the temporary incumbent who is asked to perform the duties attracting special allowances when proceeds on leave and the duties attracting special allowances are performed by some other temporary incumbent, then, the temporary incumbent who is on leave would not be entitled to the special allowances and it is only the temporary incumbent who has actually performed the duties attracting special allowances would be entitled to the special allowances. This interpretation would be consistent with the principle that the special allowance is associated to a post. Thus, a person who actually works on that post would become eligible to draw the special allowance. Para 5.10, however, makes exception to this rule by providing that in the case of a permanent incumbent he would get the special allowance even while on leave. Para 13.28 is a general provision providing 8 for pay and allowances to the workman on leave as if he was on duty. That provision does not govern the regime of “Special Allowances” as such. 15. For all the aforesaid reasons, we partially modify the award dated 12-3-1997 and the impugned order of the learned Single Judge dated 8th December 1997 by holding that the appellant bank is not liable to pay special allowances to a temporary incumbent who is asked to perform the duties attracting special allowances on the date on which he is on leave. The appeal is disposed of accordingly with no order as to costs. (J.P.Devadhar, J.) (A.M. Khanwilkar, J.)