An employee is not entitled to a special allowance if the terms of their appointment specifically state that they are not entitled to such allowance, even if the employee is not assigned the work of the designation that would entitle them to the allowance.

JUDGMENT

Raja Basu Chowdhury, J. - The instant writ application has been filed, inter alia, challenging the award passed by the Learned Central Government Industrial Tribunal, Kolkata, West Bengal in Reference No. 24 of 2016. It is the petitioner's case that previously he was engaged as a personal driver of the respondent authorities. The respondents having found the petitioner to have satisfactorily discharged his duties and having found him to be eligible for absorption in the service of the respondent no.1, as sub-staff cum driver, the General Manager, HRD by letter dated 27th October, 2011 recommended for his absorption. Thereafter he was appointed in the post of sub-staff cum driver on 21st December, 2011 and on successful completion of the probationary period his service had been confirmed.

2. The petitioner regularly receives his monthly salary through his bank account as per pay slip issued by the respondent no.1. In the pay slip his job description from the beginning was mentioned as driver cum peon. Such description continued till February 2012. Suddenly, thereafter, without any intimation the petitioner's job code, in the pay slip was changed to peon on and from March, 2013. The petitioner was also not paid additional allowance payable to drivers, in terms of bipartite settlements between the respondent no.1 and the unions.

3. Being aggrieved with the unilateral change in service conditions and for non-payment of the allowance payable to drivers, the petitioner through the union, moved before the conciliation officer for redressal of his grievances.

4. The conciliation having failed, the appropriate Government in exercise of its powers under Section 10 of the Industrial Disputes Act, 1947 (hereinafter referred to as the said Act.), had passed an order dated 28th February, 2016 thereby referring the following disputes to Tribunal for adjudication:

'Whether the action of the management i.e. Central Bank of India in denying driving allowance to i) Shri Jagdeo Prasad, 2) Md. Rafique, 3) Shri Ram Yaya Pandey is legal/and or justified? If not, what relief the workmen are entitled?'

5. Before the Tribunal the petitioner through his registered union filed a statement of claim and other relevant documents. The respondents did not contest the proceedings. Ultimately by an award dated 18th September, 2019 the Learned Tribunal was, inter alia, pleased to hold that the petitioner along with other similarly placed persons was recruited in the bank on 21st December, 2011 on the basis of their respective appointment letters. The conditions of service of the workmen were mentioned in their letters of appointment. Since the appointment letters of the workmen specifically mentions that their recruitment as sub-staffs were without special pay, the Tribunal did not find that denial of driving allowance to the workmen as violative of the conditions of service, therefore, not illegal or unjustified. The reference was answered accordingly.

6. Although the reference was made concerning three workmen, the challenge to the award is only by the writ petitioner.

7. Mr. Dhar, learned advocate representing the writ petitioner, submits that prior to the petitioner being appointed as sub-staffs cum driver, he was engaged as a personal driver of the respondents. It is only on the basis of his satisfactory performance and on being found eligible, the General Manager of the respondent no.1, by letter dated 27th October, 2011 had recommended for his absorption. Consequent upon the same, the petitioner had been appointed as sub-staff cum driver. It is submitted that notwithstanding the petitioner being appointed as sub-staff cum driver, the petitioner has never been allotted duties of a driver. Mr. Dhar, submits that the petitioner is an employee of the respondent no.1 and as such is entitled to the benefits of the bipartite settlements entered into between the respondent no.1 and the registered union of the respondent no.1. By relying on the bipartite settleme