W.P. No. 20542 (w) of 2010. Case: Nadia District Central Cooperative Bank Ltd. and Ors. Vs Nadia District Central Cooperative Bank Employees Union and Ors.. High Court of Calcutta (India)
| Case Number | W.P. No. 20542 (w) of 2010 |
| Counsel | For Appellant: Tarun Kumar Roy, Asish Kr. Das, Dinesh Ch. Nandi and Biplab Ranjan Bose, Advs. And For Respondents: Debabrata Saha Roy and Indranath Mitra, Advs. |
| Judges | Sambuddha Chakrabarti, J. |
| Issue | Industrial Disputes Act, 1947 - Sections 2, 9A, 10, 10A and 12; Provisions of the Payment of Bonus Act, 1965; Civil Procedure Code (CPC) - Section 10; Constitution of India - Article 226 |
| Judgement Date | September 28, 2011 |
| Court | High Court of Calcutta (India) |
Judgment:
Sambuddha Chakrabarti, J.
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The Petitioner No. 1 is a Central Cooperative Bank. It was registered in the year 1961. According to it, it has a total strength of about 139 employees belonging to either of the two registered and recognized trade unions, i.e. the Respondents Nos. 1 and 5 herein respectively. The employees comprise officers, supervisors, clerks and sub-staff who are members of either of the Unions.
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The Petitioners' case is that since its inception the Respondent No. 1 Bank had been paying an allowance to all its employees on the eve of the Durga Puja every year. This was paid besides the regular salaries and other payments. Over the years it came to be known as the Customary Puja Allowance. The Petitioners have given a list of different rates at which such allowance was paid to its employees from year to year. It appears from their own statement that from 1966 to 1996 the allowance was paid @ 16.66 per cent of the basic pay along with the usual Dearness Allowance.
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The Petitioners further state that there was a general pay revision which was implemented with effect from April 1, 1997 in terms of the decision of the Board of Directors of the Bank by merger of the half of the rate of the Customary Puja Allowance. Subsequently in the year 1999 by a bipartite agreement between the management of the Petitioner No. - 1 and both the trade unions in respect of the alteration in the payment of the Customary Puja Allowance it was agreed that the regular employees of the Bank shall be eligible for the Allowance in lieu of bonus from the year 1997 to 1998 @ 8.33 per cent of the aggregate of the basic pay and dearness allowance. The maximum amount of payment varied from Rs. 9,000/- to Rs. 16,000/- according to the official status of the employees. The Petitioners insist that the agreement was the result of a mutual and bilateral settlement and not in course of any conciliation proceeding nor was it the result of any reference under Section 10 A of the Industrial Disputes Act 1947.
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The Petitioners state that because of the dwindling financial condition of the Bank concerned it was resolved in the year 2003 that the system of paying Customary Puja Allowance (Allowance, for short) in lieu of bonus should be stopped from the year 2002 - 2003. Instead, the Bank was to pay bonus @ 8.33 per cent to the eligible employees in terms of the Provisions of the Payment of Bonus Act, 1965.
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Obviously, such decision left the Respondent No. 1 trade union unhappy. They felt aggrieved with the decision of stopping the Allowance and approached the Deputy Labour Commissioner, Nadia. The matter was ultimately referred to the 5th Industrial Tribunal, West Bengal. The Tribunal below finally disposed of the matter on contest by an Award dated January 29, 2010.
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The learned Judge of the Tribunal below while passing the Award had inter alia held that the Allowance became an implied condition of service. As such, to bring about any change in such a condition observance of the requirements of Section 9 A of the Industrial Disputes Act (the Act, for short) was mandatory which the Bank authorities did not do. The Tribunal below declared the decision of the Board to be invalid and void ab initio. Consequently, the discontinuance of the Allowance was also held to be bad and unjustifiable. The Tribunal below further held that as the main function of the employees of the Bank who sought for the Allowance, did not involve any managerial function the employees under reference were workmen within the meaning of Section 2 (s) of the Act and as the cause of the employees had been espoused by a substantial number of workmen the reference was not incompetent. The learned Judge of the Tribunal thus directed the management of the Petitioner No. 1 to pay the Allowance to its employees within 30 days from the receipt of the Award. In default, it would carry the statutory interest @ 8 per cent per annum.
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This Award is under challenge in the present writ petition.
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On behalf of the Respondent No. 1 union, its secretary had affirmed an affidavit. It was specifically denied that by virtue of the bipartite agreement dated May 20, 1999 by and between the management of the Petitioner No. 1 and both the trade unions the Allowance had lost its customary character and became a product of an express mutual and bilateral settlement. It has been contended that the question whether the said agreement was arrived at under Section 2 (e) of the Act or was the outcome of a reference under Section 10 A of the Act was immaterial and irrelevant. Since there was no dispute the question of forwarding the agreement to the authorized officer or the Conciliation Officer or the appropriate government did not arise. The Petitioners? stand about the unsoundness of the financial condition was a pretext to deprive the employees of their Allowance. The agreement dated May 20, 1999 is binding upon all the parties to the agreement and no departure from the same was permissible in law. The answering Respondent has very firmly contended that the resolution to curtail the existing benefit of the Allowance was not sustainable as in the earlier agreement dated May 20, 1999 it was clearly provided that it would continue until further agreement. According to the Respondent No. 1 the conclusions of the Tribunal were just and correct and the Tribunal had rightly held that the employees of the Bank under reference were workmen within the meaning of Section 2 (s) of the Act. The Respondents submitted that the Petitioners have miserably failed to make out even a prima facie case and prayed for the dismissal of the writ petition.
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In the Affidavit-in-Reply the Petitioners contended that the agreement dated May 20, 1999 cannot change the provision of Section 2 (e) or Section 10 A of the Act and the said provisions cannot in any way be said to be immaterial. The Petitioners have denied the contention of the Respondent No. - 1 that the question of forwarding the same to the authorized officer or the Conciliation Officer cannot arise. The Petitioners have reiterated their statements made in the writ petition regarding the financial condition of the Bank.
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It is the contention of the Petitioners that the order of reference was incompetent, as the employees of both the Unions comprise all the staff of the Bank. The clerks and sub-staff have been employed for Managerial and Administrative purposes. It also includes those employees who have been employed in supervisory capacities. The Petitioners strongly contended that they were not workmen within the meaning of Section 2 (s) of the Act. As such the dispute was not an industrial dispute rendering the Award of the Tribunal to be without jurisdiction and authority of law. After the agreement of May 20, 1999 the nature of the Allowance was transformed into a product of an express mutual and bilateral deal by not only reducing the Bank's obligation to pay by half but also by putting different monetary limits in respect of different categories of employees.
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The Petitioners have challenged the Award on the ground that the learned Tribunal erroneously had come to the conclusion that the members of the Respondent No. - 1 union was workmen despite the union itself having admitted that supervisors and managers of the Bank were also its members. A further point of attack is that the Bank's obligation to pay the Allowance after the agreement of 1999 was regulated by the terms agreed upon by the parties. The Tribunal had no reason to hold that the Allowance had became an implied condition of service and that for failure to comply with the provisions of Section 9 A of the Act the resolution of the Board of Directors was invalid and void ab initio.
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The Petitioners further contended that the order of reference itself was incompetent since the dispute was not a dispute between the Bank and its employees as workmen. These employees consisted of Clerks and Officers employed in managerial, administrative capacity as well as supervisory capacities and their salary was more than 1,600/- per month. As such they do not qualify the requirement of being a workman as provided in Section 2 (s) of the Act.
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The Petitioners also submitted that the consistent payment of the Allowance for a very long time was without any statutory requirement and was not a part of the condition of service. That is how this assumed a customary character which was consciously given a go-bye by the agreement, dated May 20, 1999.
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The highest concession that the Bank was willing to grant was that it could at most be said that there was a breach of the bipartite agreement dated May 20, 1999. But for that the Industrial Tribunal cannot have any jurisdiction to go into the question, as this bipartite agreement cannot be regarded as a settlement within the meaning of Section 2 (p) of the Act as all the employees covered thereby were not workmen and no copy of this agreement was sent to any authorised officer of the State Government as is the requirement of law.
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The Petitioners relied on the decision of International Airport Authority of India v. International Air Cargo Workers? Union and Anr. reported in (2009) 13 S.C.C 374 on the point of the scope of judicial review. It has been held in the said decision that the findings of fact recorded by a fact-finding authority should ordinarily be considered as final. The findings of the Tribunal should not be interfered with in writ jurisdiction merely on the ground that the materials on which the Tribunal had acted was insufficient or not credible. The Supreme Court further held that while the above proposition was true it was also true that where the Tribunal recorded findings on no evidence or irrelevant evidence it was open to the High Court to interfere with the award of the Industrial Tribunal.
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