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Judgment
Ashwini Kumar Sinha, J.—This second appeal is by the principal-defendants 1 to 3 against a judgment of reversal. The plaintiff brought the suit for declaration that the 9th vacancy to the post of Sub-Accountant, Central Bank of India (hereinafter referred to as ''the Bank'') at Muradpur Branch as on 1.9.1978 (announced in January 1979 should have been filled up, by the plaintiff. The plaintiff further prayed for restraining the principal-defendants (the appellants) from giving promotion to the post of Sub-Accountant in the Bank on the basis of seniority list as on 1.3.1979, alternatively, the plaintiff prayed that one post of Sub-Accountant vacant at Muradpur Branch in the promotion list of 1.9.78 be not filled up till the decision of the suit.
In short, plaintiff''s case was that he was on the top of the waiting panel as his position was 10th and on refusal of defendant No. 4 to join this post, it should have been given to the plaintiff.
According to the plaintiff, he was appointed as clerk in the Bank on 6-12-1969 and on completion of six years of service he became eligible for promotion. According to the plaintiff; the memorandum of agreement dated 20-12-1975 was the guideline for the service conditions of the employees of the Bank and the seniority list is prepared twice in the year; once on 1st of March and the other on 1st of September of each year. According to the plaintiff, his position was 12th for candidates appearing for promotion test. After the examination, the plaintiff''s position was declared as 10th in the panel list for promotion. Defendant No. 4 did not appear in the test. According to seniority list prepared on 1-3-1978 without assigning any reasons and hence, according to the plaintiff, in accordance with the clause 1.48 of the memorandum of agreement dated 20-12-75, she was not entitled to be put in the seniority list as displayed in the month of September, 1978; yet, in the panel she was placed as 4th in the promotion list. According to the plaintiff, as per clause 1.44 of the aforesaid memorandum of agreement the principal defendants were duty beyond to issue notice to the candidates selected for promotion 15 days in advance from the date of the posting on promotion, but no such notice was ever issued to the candidates.
Admittedly, defendant No. 4 did not join her post at the Muradpur Branch of the Bank as per intimation on 28-2-1979; and instead of joining the post she represented to opt as Special Assistant at Rajendra Nagar Branch where there was no vacancy. According to the plaintiff, her representation was turned down treating it as her refusal to accept the place of posting at Muradpur. As a result of which one post remained vacant which, according to the plaintiff, should have been filled up by the plaintiff.
The plaintiff represented his case before the department which was rejected. The plaintiff''s case was that the principal defendants violated the provisions of clauses 1.13, 1.14, 1.37, 1.83 and contained in the memorandum of agreement, which, according to the plaintiff, had the force of law for the purposes of promotion and allied issues between the Bank and its employees.
According to the plaintiff, as one post remained vacant (under the circumstances mentioned above) and the plaintiff being fully qualified, he ought to have been promoted. According to the plaintiff, he having not-been promoted on the vacant post, though fully qualified, his seniority amongst his other colleagues was jeopardised. The plaintiff''s further case was that the principal-defendants had prepared another seniority list on 1-3-79 for another promotion test which jeopardised the genuine claim of the plaintiff as his ranking had undergone a change.
The Suit was contested by the principal defendants (appellants). Their case was, besides other general defences, that the suit was barred by clause (c) of section 14 of the Specific Relief Act. Their further defence was that the defendant No. 4 was placed at sl. No. 4 in the promotion list. According to the principal defendants, she explained her inability to appear in the test held on 20-8-19/3 on the basis of the seniority list as on 1-3-1978. According to principal defendants,'' under clause 1.48 of the promotion policy agreement dated 20-12-1975, if an eligible candidate is unable to appear in the promotion test for valid and cogent reason established to the satisfaction of Assistant General Manager prior to holding of the test, the candidate was to be given one more chance when the next promotion test is held. Accordingly, according to the principal defendants, defendant No. 4 was allowed to appear in the next promotion test held on 11-2-1979.
The case of the principal defendants was that defendant No. 4 being senior in. the seniority list to the plaintiff and having become successful in the test, the plaintiff could not be placed above defendant No. 4.
The further defence was that filling up of the post and deciding the existence of vacancies are the prerogative of the management as contained in clause 1.14 of the policy agreement.
According to the defence, defendant No. 4 was asked to report about her duty at Muradpur Branch vide letter No. LOC/79/398 but defendant No. 4 opted for Special Assistant at Rajendra Nagar Branch vide letter dated 28.2.79. According to defence, in the meantime, on 1.3.79 another seniority list was prepared in which the plaintiff''s seniority came at sl. No. 3. The contesting principal defendants further pleaded that the plaintiff was a successful candidate in the test held on 11.2.79 on the basis of seniority list as on 1.9.78 and in that view of the matter the plaintiff could not be granted reliefs sought for and the suit was fit to be dismissed.
It is pertinent to state an important fact at this place that the Banks were nationalised on 19-7-1969 and the Bank in question is one of the nationalised Banks. At this place, though it will bear repetition the "memorandum of agreement", regarding the promotion policies and other allied matters, dated 20.12.1975 between the Bank in question and its workman represented by All India Central Bank Employees Federation came into force and became effective from 1st of March, 1976.
The trial court dismissed the suit and held that the memorandum of agreement dated-20th December, 1975, had no force of law and was a mere contract which, being in its nature determinable, could not be specifically enforced and hence the suit was barred. under the provisions of the Specific Relief Act. It further held that the suit was barred by acquiescence and waiver so far as the inclusion of defendant No. 4 in the revised seniority list as on 1.9.1978 was concerned.
The principal defendants had argued that the plaintiff, in the suit, had not questioned the inclusion of defendant No. 4 in the revised seniority list as on 1.9.1978 at the earliest and hence the plaintiff must be deemed to have been waived his right to question her inclusion in the revised seniority list as on 1.9.1978 after the lapse of so many months.
This submission of the contesting defendants was accepted by the trial court and it held that the suit was barred by acquiescence and waiver.
The trial court further held that the suit, as framed, was not maintainable and the plaintiff had no cause of action for the suit. Having held as above, the trial court held that the plaintiff was entitled to the reliefs as prayed for.
A perusal of the trial court judgment shows that the Chief Manager of the Bank (Patna Regional Office) examined himself as D.W. 2 and it seems that he, as Chief Manager of the Bank, Patna Regional Office, stated in his evidence that Shri R.N. Chaube and Shri Premnath Jethly could not be senior to the plaintiff (even though they had figured at sl. Nos. 1 and 2, respectively, in the recent seniority list). The counsel for the contesting defendants had submitted that the seniority of the plaintiff was not going to be effected though placed as sl. No. 3 as the seniority of the employees was not governed by the serial number of the list, rather it was governed by the date of joining. The counsel for the contesting defendants had further submitted that so far as defendant No. 4 was concerned, she had also not been made senior to the plaintiff as she had forfeited her right to promotion for becoming Sub-Accountant.
It seems, on the submission as mentioned just above, the trial court held, as already stated above, that the plaintiff had no cause of action and was not entitled to any relief sought for.
Aggrieved by the judgment and decree of the trial court, the plaintiff preferred an appeal.
The court of appeal below allowed the appeal in part.
It held that the Memorandum of agreement dated 20-12-75 was, no doubt, an agreement between the employees and the management of the Bank, but it was in the form of regulation which governed the promotion policy of the entire staff (the lines have been underlined by me for emphasis). It further held that the Memorandum of agreement was still in force and that there was no evidence on record that the same had been superseded by any other agreement. It categorically held that the agreement of 1975 (referred to above) had the force of law and was binding upon the Bank and the violation of any provision of the said promotion policy was actionable and, in that view of the matter, it held that the suit as framed was maintainable and was also not hit by acquiescence and waiver. It held that as the plaintiff had challenged as to why he was not included in the promotion list of 28.2.1978, he had not waived his right for the relief claimed for. It further held that the contesting defendants had violated the provisions of the agreement dated 20.12.75. Ultimately, it held that the plaintiff''s claim that he should get 9th position in the revised list of 1.9.1978 was, on the facts and in the circumstances of the case, justified and consequently held that the plaintiff was entitled to get the said vacancy, i.e., the 9th position of the promotion list dated 1.9.78. Consequently, the instant second appeal has been filed by the contesting principal defendants 1 to 3.
Learned counsel appearing for the contesting defendants appellants has advanced only two submissions for consideration of this Court. Firstly, that the Memorandum of agreement dated 20.12.75 had no force of law, as it could not be taken to be a regulation and hence it could not be enforced by way of a suit and the suit was hit by section 14(1)(c) of the Specific Relief Act. The learned counsel submitted that the jurisdiction of the Civil Court was barred u/s 9 of the CPC itself. Secondly, the learned counsel for the appellants submitted that the promotion policy of 1975 was a ''settlement'' within the meaning of section 2(p) of the Industrial Disputes Act and hence it was neither a rule nor a regulation nor a statute framed under any Act and hence the rights that flow from the settlement could be adjusted only under the Industrial Disputes Act and not in a Civil Court.
I would deal first the second submission advanced by the learned counsel for the appellants. This remedy of the plaintiff under the Industrial Disputes Act was not pleaded by the contesting defendants in their pleadings. No issue also was framed by the trial court. The contesting defendants (appellants) did not argue this point before the trial court nor such an argument was advanced by them even before the lower appellate court. The defendants (appellants) have not also taken such a ground in their memo of appeal before this Court.
The instant case does not involve either a case of discharge of dismissal or retrenchment or termination of the service or any dispute or difference between the plaintiff and the Bank connected with or arising out of any such discharge, dismissal, retrenchment or termination of service. Secondly, to bring the case within the ambit of Industrial Disputes Act one has to see the definition of "employer", "industry", "industrial dispute", "settlement" and "workmen". If one looks to the definition of these terms as given in the Industrial Disputes Act, it only shows that these terms necessitate investigation of facts before one is declared "workmen" or "an employer" or before it is decided that it was a "settlement" or before it is decided that, the dispute was an "industrial dispute".
It is true that a pure point of law which does not necessitate investigation of facts could be gone into for the first time even at the stage of the second appeal but, as already stated above, to hold that the remedy of the plaintiff was under the Industrial Disputes Act and not in a Civil Court necessarily necessitates investigation into the facts at this second appeal stage which cannot be permitted in the eye of law.
Thus, for the reasons aforesaid, I hold that there is no substance in this submission of the learned counsel for the appellants and this submission fails. Then remains the only other submission advanced by the learned counsel for the defendants-appellants to be considered. The learned counsel for the defendants-appellants has submitted that the memorandum of agreement dated 20.12.75 had no force of law as it could not be taken to be a regulation and in that view of the matter it could not be enforced by way of a suit and that the suit was hit by section 14(1)(c) of the. Specific Relief Act. This memorandum of agreement dated 20.12.75 is an agreement, regarding promotion policy for clerical and subordinate staff and other connected issues, between the Bank and its workmen represented by the All India Central Bank Employees Federation. This agreement superseded all previous agreements or procedures which were in force till before 20th December, 1975, for the purposes of promotion from one cadre to another and also for fixation of wages on promotion from one cadre to another. It embodies rules governing promotions from one cadre to the other amongst various categories of staff as for (a) subordinate members of the staff, (b) clerical staff working in the Accounts Department, (c) clerical staff working in Cash Department, (d) clerical staff working in Godown/Godown Departments, (e) all other members of clerical staff and (f) subordinate and clerical staff drawing special allowances under the bipartite settlement. This memorandum of agreement became effective from 1.3.1976 and the Banks were nationalised on 19.7.1969. According to Chapter XX of the memorandum of agreement dated 20.1275, it is clear that the agreement which had come into force on and from 1st of March, 1976, was to remain in force and binding up to and including 28th February, 1979, and was also to continue in force there after until terminated by either party after giving two calendar months'' notice in writing to the other. This memorandum of agreement deals with elaborate provisions regarding the disciplinary, proceedings, promotion matters etc. The learned counsel for the defendants-appellants has not drawn my attention to any evidence on the record (either oral or documentary) to show that this memorandum of agreement in question has been superseded by any other agreement. A perusal of the written statement filed by the defendants-appellants itself shows that the defendants have themselves relied upon the various provisions of the memorandum of agreement of 1975 and, in fact, they have relied upon the pleading that no provision of the same has been contravened. The contesting defendants examined witnesses also and D.W.1, stated that the memorandum of agreement of 1975 applied to every staff of the Bank for the service condition. Thus it is clear that the defendants stand also was that the memorandum of agreement of 1975 was still in force on the date of the suit.
The main defence was that the memorandum of agreement of 1975 was a mere contract and that it had no force of law as it could not be taken to be a regulation and, in that view of the matter, according to the defendants-appellants, it could not be enforced by way of a suit.
Under the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970 (Act V of 1970), large number of Banks were nationalised. The provisions of this Act (except section 21) came into force from 19.7.1969. The Bank in question (i.e., Central Bank of. India) is one of the nationalised Banks. The suit was filed on 17.9.1979, i.e., after the Bank in question was nationalised. It has already been held above that the defendants, in the courts below, had not been able to show that the memorandum of agreement of 1975, had been superseded by any other agreement on the date of the suit rather the defendants had, in fact, relied upon the provisions of the memorandum of agreement of 1975 with the plea that no provisions thereof had been contravened. Thus, admittedly, on the date of the suit the only agreement dealing with the promotion policy was the agreement in question and even though the suit was decided on 21.2.80, the defendants-appellants had not come up before the Court with any application about any new agreement having come into force. Thus, the question arises as to where could an employee of the Bank ventilate his grievances if the provisions of the memorandum of agreement were violated? This memorandum of agreement of 1975, thus, for the purposes of promotion from one cadre to another and for other connected purposes of the service in the Plank is in the nature of regulation which governs the promotion policy of the entire staff. This memorandum of agreement of 1975, though not statutory in character is definitely in the form of regulation for the purposes of promotion from one cadre to another and is binding upon the Bank and its staff (unless superseded by any other regulation/agreement). It is well settled that a standardised contract of service with the State or a public authority by a large class of employees stands on a different footing from an ordinary contract between two individuals or even a contract by an individual with the Government. The present memorandum of agreement is an agreement between the employees and. the management of the Bank and, in my opinion, it is in the form of a regulation which governs the promotion policy of the entire staff. This memorandum of agreement imposes obligation on the Bank authorities to follow the provisions made therein. In my opinion, the Bank authorities cannot deviate from the conditions of service as provided under the memorandum of agreement in question and I hold that any deviation is enforceable by legal sanction of declaration by courts to invalidate actions in violation of the provisions made in the agreement, in question as, I hold that the Memorandum of Agreement dated 20/12/75 had the force of law and was in the form of Regulation.
Learned counsel for the defendants-appellants, in support of his main submission, relied upon the case of the The Premier Automobiles Ltd. Vs. Kamlekar Shantaram Wadke of Bombay and Others, In my opinion, this does not support the contention advanced by the learned counsel for the defendants-appellants. This case is clearly distinguishable on facts. Secondly, I have already held above that the instant case, on the facts and circumstances of the case, does not fall within the Industrial Disputes Act.
u/s 9 of the Code of Civil Procedure, the Courts shall have jurisdiction to try all suits of a civil nature excepting suits of which their cognizance is either expressly or impliedly barred. Under explanation (1) to section 9 of the Civil Procedure Code, a suit in which the right to property or to an office is contested is a suit of a civil nature.
The submission advanced on behalf of the defendants appellants to the effect that the suit was barred u/s 14(1)(c) of the Specific Relief Act has no force at ail. In my opinion, in the nature of the suit that it is, it does not fall within the meaning of section 14(1)(c) of the Specific Relief Act. The plaintiff in the present suit has only asked for a declaration of a right which flowed from the provisions of memorandum of agreement of 1975, i.e., a right to office to which, according to the plaintiff, he was entitled to. The memorandum of agreement of 1975 does not even speak of an arbitration in case of disputes and differences. It does not also either expressly or impliedly bar the jurisdiction of the Civil Court. It is well settled that even under special law where the jurisdiction of the Civil Court is barred, the Civil Court has the jurisdiction to examine cases to see if the provisions of the Act have not been complied with in other words, to see if the authority had acted in excess of jurisdiction. The instant case stands on a much stronger footing and I hold that, for the reasons mentioned above, the jurisdiction of the Civil Court was not barred for the relief sought for by the plaintiff.
I further hold that there is no legal infirmity in the judgment and decree of the court of appeal below and they are in accordance with law.
In the result, this appeal is dismissed and the judgment and decree of the court of appeal below are confirmed. However, there will be no order as to cost.