Retired Employees Association & ... vs Standard Chartered Bank & Ors.For ...
2022 Latest Caselaw 1158 Cal

                                    1


           IN THE HIGH COURT AT CALCUTTA
                      Civil Appellate Jurisdiction
                            APPELLATE SIDE


Present :
The Hon'ble Justice Soumen Sen
And

The Hon'ble Justice Ajoy Kumar Mukherjee

                          FMAT 921 of 2013
               Standard Chartered Grindlays Bank
              Retired Employees Association & Ors.
                                  Vs.
       Standard Chartered Bank & Ors.For the Petitioner

For the Appellant             : Mr. Soumya Majumdar, Adv.
                                Mr. Arijit Dey, Adv.

For the Defendant             : Mr. Ranjay De, Adv.
                                Mr. Asit Dey, Adv.
                                Mr. Subir Banerjee, Adv.

Order Dated                   :14th March, 2022


      Soumen Sen, J.(oral):- By consent of the parties the appeal and the

applications are take up together and disposed of by this common order.


      The appeal is arising out of a judgment and order dated 21st June,

2013 in connection with an application filed by the respondent/defendant

no.1 bank on 22nd June, 2012 under Order VII Rule 11(a) of the Code of

Civil Procedure.

The learned Trial Judge allowed the said application on contest and

dismissed the suit.

The appellants are aggrieved by the said order.

The plaintiff filed a suit on 26th August, 2009 praying inter alia for a

declaration that the defendant no. 1 Bank is bound to act in terms of

Bhave Award dated 26th September, 1994 and interim settlement made

between the defendant no. 1 Bank and its employees on 24th September,

2001 as modified by the settlement dated 29th November, 2007 and the

defendant no. 1 Bank is bound and obliged to give all benefits in terms of

the said two settlements. The other prayers of the plaint are arising out of

said two settlements.

The plaintiffs alleged that after the signing of the terms of

settlement dated 24th September, 2001 the defendant no. 1 bank had

failed and/or refused to implement the provisions of the Bhave Award in

its true spirit by not extending the benefit of upward revision in

pensionary benefits to the employees of the defendant no. 1 bank, who

retired prior to 1st November, 2001. It is also alleged that the rights of

the ex-employees of the respondent/defendant no.1 bank represented by

the plaintiff no. 1 association and/or union have been denied by the

respondent/ defendant no.1 bank.

The respondent/defendant no.1 bank entered appearance into the

suit on 7th June, 2010 and thereafter on 22nd December, 2010 filed a

written statement. The learned Trial Judge framed issues on 2nd

December, 2012. The suit was fixed for peremptory hearing on 22nd June,

2012. On that very date the respondent/defendant no.1 bank filed an

application under Order VII Rule 11(a) of the Code of Civil Procedure.

In order to appreciate the scope of the said application it is

necessary to briefly indicate the case made out by the plaintiff in the suit.

The plaintiff claimed that the plaintiff's Union granted registration

under the Trade Union Act, 1926 on 13th June, 2003. The plaintiff nos. 2

and 3 are retired employee of the respondent/defendant no.1 bank.

Before the plaintiff union was granted the registration, the cause of the

said retired employees used to be espoused by an Association registered

under the Societies Registration Act, 1961 by the name of Standard

Chartered Grindlays Bank Retired Employees' Welfare Association.

The employees Union of the Standard Chartered Bank raised inter

alia, disputes under the 10 of the Industrial Disputes Act, 1947 in which

Sri H.G. Bhave on 26th September, 1994 passed an award regarding

payment of pension by the respondent/defendant no.1 bank to its

employees upon their retirement and providing for periodic revision in the

quantum of pension admissible on the basis of rise in price index to all

the retired employees of the respondent/defendant no.1 bank.

Subsequently on 20th November, 1997 a Memorandum of Settlement

(MOS) was executed between the respondent/defendant no.1 bank by its

erstwhile management and the employees' association, represented by All

India Grindlays Bank Employees Association, under Section 2(p) read with

Section 18(1) of the said Act, 1947 and in furtherance of Rule 58 of the

Industrial Disputes (Central) Rules, 1957 wherein an interim settlement

on pension was arrived at whereby there was an ad hoc interim increase

in the quantum of pension to all retired employees irrespective of their

date of retirement. The said interim agreement was valid till 31st

December, 1998. The said interim agreement also provided that

employees of the respondent/defendant no.1 bank who retired on or after

1st October, 1997 would receive a retiring allowance at the rate of Rs.1400

per month for clerical staff and Rs.700/- per month for subordinate staff.

This would be in addition to the monthly pension entitlement under the

Indian Staff Pension Scheme Rules.

A Section of the retired employees of the bank felt aggrieved by the

said interim agreement dated 20th November, 1997. They filed a writ

application before the Bombay High Court being WP no. 165 of 1998

which was disposed of on 30th March, 1998 granting liberty to the

employees union to file proper application before the appropriate authority

in case they were aggrieved by any final settlement arrived at in respect of

their pensionary benefits.

On 10th March, 1999 a comprehensive Memorandum of Settlement

was arrived at between the erstwhile management of the

respondent/defendant no.1 bank and the All Indian Grindlays Bank

Employees Association, representing employees of the said Bank. The

said settlement provided for increase in quantum of monthly pension for

various categories of retired employees and the future pensioners of the

respondent/defendant no.1 bank with effect from 1st April, 1999. It was

mutually agreed by the parties that the said settlement would be

reviewed.

On 24th September, 2001 the respondent/defendant no.1 bank

entered into a further MOS with the Employees' Association in pursuance

of the Bhave Award, judgment of the Hon'ble Bombay High Court and

commitments made by the respondent/defendant no.1 bank in the

interim settlement dated 20th November, 1997 and the comprehensive

settlement dated 10th March, 1999 with regard to the upper limit of

pension in respect of the employees retiring on or after 1st November,

2001. However, the defendant No.1 bank refused to extend such benefits

to the employees retired prior to the said date. The plaintiff protected

against such discrimination and wanted to raise disputes before the

Regional Labour Commissioner (Central) (in short 'RLC') which was

opposed by the respondent/defendant no.1 bank as a result whereof

conciliation proceeding before the RLC (Central) had failed. The RLC on

21st March, 2003 advised association to approach Labour Court for

appropriate relief under Section 33C (2) of the Industrial Disputes Act,

1947 for necessary relief. This has resulted in a writ application being

filed by the plaintiff association being WP No.1998 of 2003, in which the

association prayed inter alia, for the direction upon RLC (Central) to

submit the report to the Central Government under Section 12 of the said

Act of 1947 upon failure of conciliation of the Industrial disputes

regarding denial of higher pensionery benefits to the employees of the

respondent/defendant no.1 bank who retired from service before 1st

November, 2001 along with a prayer for further direction upon the Central

Government to make an order of reference of the Industrial Disputes

under Section 10 of the said Act, 1947. The said writ application was

disposed of on 16th January, 2007 holding inter alia, that the retired

employees cannot raise industrial dispute within the purview of the

Industrial Dispute Act, 1947. The association preferred an appeal before

the Hon'ble Division Bench of this Court wherein the Co-ordinate Bench

for an order dated 8th July, 2009 disposed of the appeal recording that in

the event, the appellants namely the plaintiffs herein approached the Civil

Court for redressal of their grievance within six weeks from the date of the

order they would have the benefit of section 14 of the Limitation Act as

they were pursuing their remedy in the writ jurisdiction bona fide. It was

on the basis of the said leave the suit has been filed in which it is

contended that ever since the signing of the terms of settlement dated 24th

September, 2001 the respondent/defendant no.1 bank has

failed/refused/neglected to implement the pension of the Bhave Award in

its spirit by not extending the benefit of upward revision in pensionary

benefits to the employees of the respondent/defendant no.1 bank who

retired prior to 1st November, 2001. The plaint avers the subsequent

events that had taken place following the settlement which were also

stated in the writ petition. In the plaint, it is stated that the cause of

action instituted the suit firstly arose on 30th October, 2002 when the

respondent/defendant no.1 bank issued a letter denying the rights of the

plaintiff as aforesaid and the same is continuing day to day. By reason of

the order of the Hon'ble High Court at Calcutta in the aforesaid writ

application and in the appeal against the order passed in the aforesaid

writ application, the plaintiffs are entitled to obtain the reliefs under

Section 14 of the Limitation Act.

The respondent/defendant no.1 bank after the issues were settled

and on the date of the peremptory hearing of the suit filed an application

for dismissal of the plaint on the ground that the plaintiff has no cause of

action.

The learned Trial Judge decided the said application in favour of the

respondent/defendant no.1 bank.

The issues arise for consideration in the appeal is whether the

learned Trial Judge in exercises of the power under Order VII Rule 11 (a)

could have dismissed the suit. On the ground that the plaintiff does not

have any cause of action against the respondent/defendant no.1 bank.

The answer is a clear and simple 'No'.

The plaint is required to conform to Order 7 Rule 1 of the Code of Civil Procedure. It is essential that a plaint must disclose a cause of action and a statement to the effect that it is not barred by limitation. The cause of action is essentially a bundle of facts to be stated in the plaint which if proved at the trial would result in a decree being passed in favour of the plaintiff.

In Read v. Brown (1888) 22 QBD 128, Lord Esher M.R., defined "cause of action" to mean "every fact which it would be necessary for the plaintiff to prove, if traversed, in order to support his right to the judgment of the Court. It does not comprise every piece of evidence which is necessary to prove each fact, but every fact which is necessary to be proved."

Fry L. J., agreed and said :-

"Everything which, if not proved, gives the defendant an immediate right to judgment must be part of the cause of action."

There is a distinction between a plaint not disclosing a cause of action and the plaintiff has no cause of action to sue. A decision as to whether the plaint discloses no cause of action the Court is required to read the plaint in a meaningful manner and take the averments in the plaint to be correct. The plaintiff may have a cause of action which ultimately may not succeed that is not the consideration on which the plaint is to be rejected at the initial stage.

To put it in a concise form, the words "cause of action" means the whole bundle of material facts which are necessary for the plaintiff to prove, in order to entitle him to the reliefs claimed in the suit. Order 7 Rule 1 requires the plaintiff to incorporate in the plaint the facts constituting the cause of action. The plaintiff is required to plead all material facts upon which his right to relief is based and from which court can arrive at a conclusion in his favour. Such "cause of action" generally means a situation or state of facts that entitles a party to maintain an action in court, the material facts imperative for claimant to allege and prove, constitute cause of action that helps plaintiff to obtain decree. The phrase 'does not disclose cause of action' as used in Order 7 Rule 11(a) has to be narrowly construed. The distinction between non-existence of a cause of action and nondisclosure of cause of action has been discussed in State of Orissa v. Kolckna Company Ltd., reported at MANU/SC/1460/1996 : (1996) 8 SCC 377.

Under Order 7 Rule 11(a), the plaint shall be rejected only if the averments in the plaint ex facie do not disclose a cause of action or on a reading thereof the suit appears to be barred under any law. The plea that there is no cause of action for the suit is not same as to say the plaint does not disclose any cause of action, which is a ground for the rejection of the plaint. The correctness or otherwise of the allegations constituting the cause of action is beyond the purview of Clause (a) of Order 7 Rule 11. (See British Airways v. Art Works Export Ltd. & Anr. reported at MANU/WB/0022/1986 : AIR 1986 Cal 120)

(See. Lindsay International Pvt. Ltd. and Ors. vs. Laxmi Niwas Mittal and Ors. reported at MANU/WB/0743/2017, 2018(2) CHN (CAL) 464, (2018)1CALLT254(HC), (2018)2WBLR(Cal)259)

In view of the judgment of the learned Single Judge in the writ

proceeding and the leave granted by the Hon'ble Division Bench in the

appeal preferred against the order of the learned Single Judge the suit

was filed. It is elementary that for every wrong there must be a remedy as

the Latin Maxim says ubi jus ibi remedium. The plaintiffs cannot be

rendered remediless. On a clear and meaningful reading of the plaint

there cannot be any doubt that the appellants have semblance of the

cause of action against the respondent/defendant no.1 bank. Once it is

established that the plaintiff has a cause of action against the defendant

and more particularly the defendant no. 1 and the plaint disclose, a cause

of action the court is not called upon at the stage assessing a demurrer to

decide whether the case is likely to fail; the only consideration is whether

the plaint disclose the cause of action against such defendant who asserts

to the contrary. (See. Laxmi Niwas Mittal vs. Lindsay International

Private Limited and Ors. reported at MANU/WB/0015/2018; 2018(2)

CHN (CAL) 42).

In Special Leave Petition arising out of by the order dated 16th

January, 2018 passed by the Hon'ble coordinate bench the Hon'ble

Supreme Court dismissed the Special Leave Petition on 27th April, 2018.

In view of the aforesaid settled position of law we are of the opinion

that the learned Trial Judge has passed the impugned order on a

misconception of law and the said impugned order is liable to be set aside.

We accordingly set aside the impugned order.

In view of our order the suit revives. We request the learned Trial

Judge to decide the suit on merits as expeditiously as possible. The trial

Court shall decide the suit uninfluenced by any of the observation made

by us in this appeal.

In view of the above, FMAT 921 of 2013 is disposed of.

There shall be no order as to costs.

      I agree                                           (Soumen Sen, J.)


      (Ajoy Kumar Mukherjee, J.)