Delhi High Court
State Bank Of Bikaner & Jaipur vs All India Bank Deposit Collectors ... on 20 April, 2015
Author: Suresh Kait
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on: April 20, 2015
+ W.P.(C) 7571/2014 & CM Nos.17864-17865/2014
STATE BANK OF BIKANER & JAIPUR ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR ..... Respondents
+ W.P.(C) 8340/2014 & CM Nos.19328-19329/2014
UNION BANK OF INDIA ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR ..... Respondents
+ W.P.(C) 8174/2014 & CM No.19017/2014
THE FEDERAL BANK LTD. ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR ..... Respondents
+ W.P.(C) 8330/2014 & CM Nos.19316-19317/2014
STATE BANK OF MYSORE ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR ..... Respondents
WP(C) No. 7571/2014 Page 1 of 45
+ W.P.(C) 8379/2014 & CM No.19407/2014
STATE BANK OF PATIALA ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR .....Respondents
+ W.P.(C) 8233/2014 & CM Nos.19142-19143/2014
THE LAKSHMI VILAS BANK LTD. ..... Petitioner
versus
ALL INDIA BANK DEPOSIT & ANR. .....Respondents
+ W.P.(C) 8384/2014 & CM Nos.19418-19419/2014
INDIAN BANK ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR .... Respondents
+ W.P.(C) 8236/2014 & CM Nos.19149-19150/2014
UCO BANK .....Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR .... Respondents
+ W.P.(C) 8332/2014 & 19319-19320/2014
DENA BANK ..... Petitioner
WP(C) No. 7571/2014 Page 2 of 45
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR ..... Respondents
+ W.P.(C) 8380/2014 & CM No.19409/2014
BANK OF MAHARASHTRA ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR ..... Respondents
+ W.P.(C) 7584/2014 & CM No.17878-17879/2014
STATE BANK OF HYDERABAD ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR. ..... Respondents
+ W.P.(C) 7588/2014 & CM Nos.17886-17887/2014
SYNDICATE BANK ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR. .... Respondents
+ W.P.(C) 7589/2014 & CM Nos.17888-17889/2014
VIJAYA BANK ..... Petitioner
versus
WP(C) No. 7571/2014 Page 3 of 45
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR .....Respondents
+ W.P.(C) 7590/2014 & CM Nos.17890-17891/2014
ING VYSYA BANK LTD. ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION .... Respondent
+ W.P.(C) 7591/2014 & CM Nos.17892-17893/2014
PUNJAB NATIONAL BANK ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR .....Respondents
+ W.P.(C) 7698/2014 & CM Nos.18130-18131/2014
THE SOUTH INDIAN BANK LTD. ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR ..... Respondents
+ W.P.(C) 7832/2014 & CM Nos.18386-18387/2014
KARANATAKA BANK LTD. ..... Petitioner
versus
ALL INDIA BANK DEPOSIT & ANR. .... Respondents
WP(C) No. 7571/2014 Page 4 of 45
+ W.P.(C) 7833/2014 & CM Nos.18388-18389/2014
CENTRAL BANK OF INDIA ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR .....Respondents
+ W.P.(C) 8056/2014 & CM No.18820/2014
CANARA BANK ..... Petitioner
versus
ALL INDIA BANK DEPOSTI COLLECTORS
FEDERATION & ANR. ..... Respondents
+ W.P.(C) 8063/2014 & CM No.18827/2014
ANDHRA BANK ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLECTORS
FEDERATION & ANR ..... Respondents
AND
+ W.P.(C) 8065/2014 & CM No.18829/2014
CORPORATION BANK ..... Petitioner
versus
ALL INDIA BANK DEPOSIT COLLECTORS
FEDERATION & ANR .....Respondents
Represented by:- Mr. Jagat Arora &
Mr. Rajat Arora, Advocates for the
petitioners.
WP(C) No. 7571/2014 Page 5 of 45
Mr. Inderjit Singh, Advocate for
respondent No.1/Federation.
Ms. Rashmi B. Singh, Advocate for
respondent No.2.
CORAM:
HON'BLE MR. JUSTICE SURESH KAIT
SURESH KAIT, J.
1. This batch of writ petitions are directed against the Award
dated 07.10.2013 and modified vide order dated 02.06.2014
whereby the learned Tribunal held as under:-
"188. On above standard, a deposit collector
would get a sum of Rs.9000 .00 in a year towards
conveyance allowance. Adding that amount to the
cost incurred on a deposit collector for collection
of Rs.3 lac, the bank had to spend only a sum of
Rs.96,000.00 on fall back wages + Rs.4000,00 on
gratuity + Rs.9000.00 as conveyance allowance. In
all, banks have to spend a sum of Rs.1,09,000.00
out of the earning of Rs.1,22,,850.00. This
arithmetic projects that by payment of that much of
amount, the bank would earn something on a
collection of Rs.3 lac per month by a deposit
collector of „C‟ area city. Earning of the bank
would be more on collection of deposit collectors of
„B‟ area and „A‟ area cities. When deposit
collectors would collect more than the minima
prescribed for them, the income of the bank would
grow more. Arguments of the bank relating to
economic viability of the scheme would have an
answer from the above reasoning.
189. The Tribunal has power to give
retrospective effect to its award, as held by the
Apex Court in New Edgeson Woollen Mills
(1969(2) LLJ 782) and Sarva Shramik Sangh,
Bombay (1993 Lab.I.C. 870). It is a well
established proposition of law that an industrial
adjudicator can treat the date of demand and the
date on which he award comes into force as two
extreme points to give effect to the award. The date
from which this award would be effective, should be
decided by the Tribunal on consideration of facts
and circumstances projected herein. As award
Ex.WW1/3 highlights, fixation of fall back wages
and incentive remuneration was based on the
circumstances prevalent in the year 1981. The fall
back wages and incentive remuneration fixed by
award dated 22.12.1988, remained static till date.
The present dispute was raised by the Federation in
the year 2003. After raising of the dispute and
during the course of adjudication a few of the banks
closed their small deposit schemes. In case this
award is not given any retrospective effect, then the
deposit collectors of the banks, who had closed the
scheme, would not be eligible to get any relief out
of it. Therefore, I am of the considered opinion that
this Tribunal should give retrospective effect to the
award so that the deposit collectors, whose case
was projected before the Tribunal, may also avail
their rights so adjudicated herein. In view of the
above discussion, it is concluded that the demand of
the Federation/Union for enhancement of fall back
wages and incentive remuneration, besides
conveyance allowance is justified. The issue is
answered, accordingly.
Relief
190. In view of the findings recorded on issue
No.1, it is ordered that deposit collectors operating
in „A‟ area, „B‟ area and „C‟ area cities would
collect atleast Rs.3 lac, Rs.4 lac and Rs.5 lac per
month respectively. They can meet the target every
month or may collect a sum of Rs.9 lac, Rs.12 lac
and Rs.15 lac respectively on 31st March, 30th June,
30th September and 31st December every year. On
a collection of Rs.3 lac, a deposit collector would
get fall back wages of Rs.8000.00 per month,
besides conveyance allowance of Rs.750.00 per
month. He will also get gratuity of Rs.4000.00
every year. On a collection of over and above Rs.3
lac and upto Rs.5 lac, all deposit collectors,
irrespective of their areas of operation, will earn
incentive remuneration of 3%. Thus, a deposit
collector of „B‟ area and „A‟ area city would get
Rs.3000.00 and Rs.6000.00 respectively per month
as incentive remuneration on minima limit of their
collection. On collection of over and above Rs.5
lac, a deposit collector would get incentive
remuneration of 2%. All deposit collectors,
irrespective of areas of their operation, would get
conveyance allowance at flat rate of Rs.750.00 per
month.
191. In case of failure of a deposit collector to
meet minima standard of collection consecutively
for two quarters of a year, his contact of service
would be snapped by the bank without any further
notice to him. For this inefficiency, he will not be
able to claim any right of being heard from the
bank.
192. The award will have retrospective
operation from 19.07.2005, the date when the
banks were summoned to appear before the
Tribunal. An award is, accordingly, passed. It be
sent to the appropriate Government for
publication."
2. Vide Order dated 02.06.2014, Learned Tribunal modified the
Award that wherever it is recorded that the Collectors operating in
areas A, B and C would collect Rs.3, Rs.4 and Rs. 5 Lac shall be
read as "the Collectors operating in areas C, B and A would collect
Rs. 3 Lac, Rs. 4 Lac and Rs. 5 Lac per month respectively."
3. The brief facts leading to filing of the present petitions are
that most of the Nationalized/ private/subsidiary Banks of State
Bank of India had introduced a Scheme known as Pigmy Deposit
Collection Scheme. It was known by various names in different
banks. The Schemes were introduced at various points of time in
the year 1960/1980‟s. Some of the banks had introduced the
Scheme much earlier also. The basic concept of the Scheme was
that the Pigmy Deposit Collectors (hereinafter referred to as
„Collectors‟) would visit the homes/offices of the customers to
collect cash and deposit the same in their bank accounts maintained
with the respective Banks. These Schemes served the dual purpose,
i.e., the Banks would get the deposits from the customers, where the
Banking business was not widely expanded and would also
encourage the vast majority of the people to inculcate a habit of
savings by getting their deposit in the Banks without spending any
time or effort as the same was collected at their own door steps
either at home or shop/place of business or work etc.
4. Thereafter, the Collectors organized themselves through a
union and raised an industrial dispute which was referred to the
Industrial Tribunal, Hyderabad for adjudication with the following
terms of reference:
"Whether demand of the commission agents or as
the case may be, deposit collectors engaged in the
banks listed in the annexure that they are entitled to
pay scales, allowances and other service conditions
available to regular clerical employees of those
banks is justified ? If not, to what relief the
workmen are entitled to and from which date?"
5. The Hyderabad Tribunal answered the reference by awarding
the relief to Collectors below 45 years as on October 1980 to be
considered for absorption as Clerks and Cashiers if they are
matriculates and above, including qualified Graduates and Post
Graduates. Those who are absorbed shall be treated at par with
regular clerical employees of the Banks. Those who are qualified
with 8th Class and below matriculates shall be considered for
absorption as sub-staff by taking qualifying examination. Those
who are above 45 years and those who do not wish to be regularized
shall be paid Rs.750/- p.m. linked with Rs.7,500/- p.m. They would
be paid for collection over Rs.7,500/-a commission at 2%. Also a
uniform conveyance allowance of Rs.50/- p.m. for deposit upto
Rs.10000/- or upto Rs.30000/- p.m. They should be paid gratuity of
15 days commission for each year of service rendered.
6. The above mentioned Award passed by the Hyderbad Tribunal
was challenged by the Syndicate Bank before the High Court of
Hyderabad. The Writ Petition was allowed by modifying the Award
that none of the Deposit Collectors could be absorbed, however, the
fall back wages, incentive commission, conveyance allowance,
gratuity would be payable to them.
7. Being aggrieved, the Unions of Collectors challenged the
High Court Judgment before the Supreme Court. The same was
decided in the case of Indian Banks' Association Vs Syndicate
Bank 2001 SCC (L&S) 504 wherein the Apex Court held that the
Deposit Collectors cannot be treated as regular employees of the
Bank, though they may be „workmen‟ under the Industrial Disputes
Act.
8. Accordingly, the Supreme Court expressed its opinion in para
27 & 28 as under:-
"27. We also see no force in the contention that
Section 10 of the Banking Regulations Act prevents
employment of persons on commission basis. The
proviso to Section 10 makes it clear that commission
can be paid to persons who are not in regular
employment. Undoubtedly the Deposit Collectors
are not regular employees of the Bank. But they
nevertheless are workers within the meaning of the
term as defined in the Industrial Disputes Act. There
is clearly a relationship of master and servant
between the Deposit Collectors and the concerned
Bank.
28. Mr. Nageshwar Rao is right in his submission
that the concession was not binding on his clients.
However, what has been conceded has been
correctly conceded. No question arose of directing
absorption of the Deposit Collectors as regular
workmen. No such demand had been made and,
therefore, there could have been no such direction.
Such directions were beyond the reference. Even
otherwise, the question of absorption would be fully
covered by an authority of this Court in the case of
Union of India vs. K. VS. Baby. In this case it has
been held that persons who are engaged on the
basis of individual contracts to work on commission
basis cannot be equated with regular employees
doing similar work. It has been held that the mode
of selection and qualifications are not comparable
with those of the employees, even though the
employees may be doing similar works. In the
present case, not only are the modes of selection and
qualifications not comparable, but even the work is
not comparable. The work which the Deposit
Collectors do is completely different from the work
which the regular employees do. There was thus no
question of absorption and there was also no
question of the Deposit Collectors being paid the
same pay scales, allowances and other service
conditions of the regular employees of the banks."
9. Mr. Jagat Arora, learned counsel appearing on behalf of the
petitioners submitted that the present reference to the Tribunal
contains the following terms of reference:
"Whether the demand of All India Banks Deposit
Collectors Federation for linkage of fall back wages
of Rs.7500.00 as determined by award dated
22.12.1998 by Industrial Tribunal, Hyderabad,
which is based on Consumer Price Index at 500
points (Base 1960=100) to the present Consumer
Price Index and their upward revision is justified?
Whether the demand of All India Bank Deposit
Collectors Federation for reimbursement of
Conveyance expenses at revised and enhances rate
is justified? If so, what relief the said deposit
Collectors employed by various Banks represented
by the Indian Banks‟ Association are entitled to and
from which date?"
10. Mr. Arora submitted that the impugned award given by the
Tribunal whereby relief has been awarded in favour of the workmen
is vitiated, without jurisdiction, illegal, liable to be set aside or in
any event be remanded back to the Industrial Tribunal for
determination in accordance with law. The Tribunal is bound by the
terms of reference and cannot travel beyond the same. In the
present case there was no reference regarding gratuity. There were
no pleadings in the claim statements filed by the two unions
claiming gratuity but still under the impugned award gratuity has
been awarded that too in violation of the provisions of Payment of
Gratuity Act. The Act prescribes that minimum 5 years of service
is required. However, under the impugned award the gratuity is to
be awarded without any minimum period of service for eligibility.
11. To strengthen his arguments on the issue raised, learned
counsel relied upon the judgment of the Supreme Court in the case
of J.K. Iron and Steel Co.Ltd., Kanpur vs. The Iron and Steel
Mazdoor Union, Kanpur AIR 1956 SC 231 in which the Apex
Court has held as under:-
"22. All the same, wide as their powers are, these
Tribunals are not absolute and there are limitations
to the ambit of their authority. In Bharat Bank, Ltd.
vs. Employees of Bharat Bank Ltd.‟AIR 1950 SC 188
at p. 203 (C), this Court held by a majority that
though these Tribunals are not Courts in the strict
sense of the term they have to discharge quasi-
judicial functions and as such are subject to the
overriding jurisdiction of this Court under Art 136
of the Constitution. Their powers derived from the
statute that creates them and they have to function
within the limits imposed there and to act according
to its provisions. ................"
12. Further relied upon the case of M/S. Parry and Co., Ltd. vs.
P.C. Pal, Judge of the Second Industrial Tribunal, Calcutta and
Others. AIR 1970 SC 1334 in which the Apex Court held as under:-
"13. ............................................. the Tribunal
had to confine itself to the pleadings and the issues
arising therefrom and it was, therefore, not open to it
to fly off at the tangent disregarding the pleadings
and reach any conclusions that it thought as just and
proper."
13. Learned counsel also relied upon the case of Workmen of
M/s. Hindustan Lever Ltd. and others vs. Management of M/s
Hindustan Lever Ltd. AIR 1984 SC 516 in which the Apex Court
held as under:-
"25. ........................The Tribunal may as well frame
preliminary issues if the point on which the parties
are at variance, as reflected in the preliminary issue,
would go to the root of the matter. But the Tribunal
cannot travel beyond the pleadings and arrogate to
itself the power to raise issues which the parties to
the reference are precluded or prohibited from
raising; to wit if the employer does not question the
status of the workmen, the Tribunal cannot suo moto
raise the issue and proceed to adjudicate upon the
same and throw out the reference on the sole ground
that the concerned workman was not a workman
within the meaning of the expression of the
Act..........."
14. Mr. Arora further submitted that the Tribunal was to see the
scope of the reference from the circumstances preceding the
reference. Since no claim was raised in the pleadings before the
Tribunal, no „industrial dispute‟ exists in relation to gratuity, thus
the Tribunal has disregarded the well settled law.
15. Learned counsel further submitted that the Tribunal has
proceeded on the basis as if the mini Deposit Collectors were
employees and, therefore, they are entitled to better remuneration
than fixed earlier. Whereas, the Apex Court in case of Indian
Banks' Association (supra) clearly held that they cannot be treated
to be regular employees but they are only „workmen‟ under the Act.
16. Mr. Arora submitted that the Tribunal misdirected itself by
not considering the cost analysis in running the schemes as per the
chart extracted at page 13 and 14 of the WP(C) 7571/2014. He
contended that the financial aspect was completely lost sight of by
the Tribunal. As per the evidence of workman, namely, Mr. I.P.
Ponnusamy, Mr. Ashish Bilala and Mr. A.N. Sivananad Babu, they
have admitted that Banks are suffering losses in the scheme in
question and the Unions have done no study or research to show
about the cost benefit analysis. Whereas the Bank Management had
produced documents in evidence showing losses. In number of
cases the Supreme Court has observed that financial capability is
one of the main criteria before any monetary benefit could be
granted to the workman.
17. To strengthen his arguments on the above issue, learned
counsel relied upon the case of A.K. Bindal and Another vs. Union
of India and Others 2003-II LLJ page 1078 in which the Apex
Court observed as under:-
"16. The contention that economic viability of the
industrial unit or the financial capacity of the
employer cannot be taken into consideration in the
matter of revision of pay scales of the employees, does
not appeal to us. The question of revision of wages of
workmen was examined by a Constitution Bench in
Express Newspapers Ltd. and Ors. vs. Union of India
and Ors. AIR 1958 SC 578: 1961-I-LLJ-339, having
regard to the provisions of Industrial Disputes Act
and Minimum Wages Act and the following principles
for fixation of rates of wages were laid down at p.367
of LLJ:
(1) that in the fixation of rates of wages which include
within its compass the fixation of scales of wages also,
the capacity of the industry to pay is one of the
essential circumstance to be taken into consideration
except in cases of bare subsistence or minimum wage
where the employer is bound to pay the same
irrespective of such capacity ;
(2) that the capacity of the industry to pay is to be
considered on an industry-cum-region basis after
taking a fair cross section of the industry; and
(3) that the proper measure for gauging the capacity
of the industry to pay should take into account the
elasticity of demand for the product, the possibility of
tightening up the organisation so that the industry
could pay higher wages without difficulty and the
possibility of increase in production considered in
conjunction with the elasticity of demand for the
product - no doubt against the ultimate back-ground
that the burden of the increased rate should not be
such as to drive the employer out business".
18. Mr. Arora further submitted that the Tribunal has also erred
in granting the relief from a retrospective date without realising the
financial implication of the award. In most of the cases, such as
State Bank of Jaipur and Bikaner, the financial implication is more
than 373 lakhs, and similarly in other connected banks. The scales
fixed by the Tribunal while comparing the Banking Sector with
Industrial Sector or insurance industries itself shows that the
Tribunal has compared the commission paid to the Collectors.
19. Learned counsel submitted that all industries are different and
wages or minimum wages are fixed for employees in that particular
industry. In the present case of Collectors they are not "regular
employees" as held by the Supreme Court. They have no fixed
working hours, no disciplinary control by the Banks, no hours of
work, leave etc. The comparison with the insurance industries and
other industries is, therefore, untenable.
20. Mr. Arora further submitted that learned Tribunal also
misdirected itself by adding parties to the reference and made the
award applicable to them when in fact no demand has been raised
against them. No conciliation had taken place and such
unjustifiable and untenable demands have been granted. It is the
settled law that for raising a valid „industrial dispute‟, the
conciliation proceedings to take place, Govt. to consider the report
of Conciliation and then make a reference. However, by adding
parties the Tribunal acted unjustifiably giving no chance to the
employers concerned to place/plead their cases before the
Authorities concerned. Thus, the principles of natural justice have
been violated.
21. Mr. Arora further submitted that in one of the writ petition,
i.e., WP(C)No.8236/2014 and other petitions the point had been
raised that no tenure has been fixed by the Tribunal under the award
for keeping the deposit. Therefore, it has so happened that some of
the deposit once made is again withdrawn and recycled and thus,
the same money is used again and again by the Collectors.
22. It is pertinent to mention here that vide order dated 27.11.2014
this Court permitted the petitioners to file an additional affidavit to
explain this phenomena. Accordingly, on perusal of charts it shows
that the money is taken and withdrawn and further shows how
losses are being caused to the Banks.
23. Mr. Arora submitted that on pleadings of the parties, the
learned Tribunal framed the following three issues:-
"(i) As per terms of reference sent by Government of India.
(ii) Was there any privity of contract between the
concerned workmen and the IBA? IF not, what are
consequences?
(iii) Relief."
24. The learned Tribunal gave its opinion on the issue no.(ii)
above in para 89 in its Award which is as under:-
"89. Record tells that vide order dated 19.07.2005,
40 banks were summoned to represent interest of the
employer. Those banks filed their respective written
statements and contested claims put forward by the
Federation as well as the Union. Admittedly, the
deposit collectors represented by the Federation
/Union, work with those banks, who have been added
as parties to the dispute. On impleadment of those
banks as parties to the dispute, the issue became
redundant. Accordingly, it is concluded that the issue,
referred above, needs no adjudication. It is answered,
accordingly."
25. Learned counsel further submitted that the Payment of
Gratuity Act, 1972 is not applicable on workmen, however, it
applies only to the employees under the said Act. Therefore, the
Award on the gratuity and other issues raised above is to be set
aside.
26. On the other hand, Mr. Inderjit Singh, learned counsel for
respondent No.1/Federation submitted that the impugned award is
just, fair and based on determined appraisal of evidence. Therefore,
this Court may not disturb the same while exercising its supervisory
jurisdiction as the writ petitions are not bonafidely filed and their
only objective is to tear out the poor workmen in endless litigation.
As argued by the counsel for the petitioners, the learned Tribunal
had added parties to the reference without jurisdiction and against
the provisions of the Industrial Disputes Act, 1947. In the case of
Hochtief Gammon vs. Industrial Tribunal, Bhubaneshwar, Orissa
& Ors. Industrial Tribunal, Bhubaneshwar, Orissa and Ors.
[1964] 7 SCR-596 the Apex Court has held that a party to the
industrial dispute named in the order of reference does not
completely or adequately represent the interest either on the side of
the employer, or on the side of the employee, it may direct that
other persons should be joined who would be necessary to represent
such interest. The test always must be, is the addition of the party
necessary to make the adjudication itself effective and enforceable?
Moreover, the order of impleading the other banks in the
proceedings before the Tribunal ought to have been challenged at
that point of time. However, the petitioner waited for the result of
the same. Hence, at this stage, the petitioners moved to this Court
just to defeat the fruits of the respondents workmen received from
the Tribunal.
27. Learned counsel further submitted that the learned Tribunal
rejected the cost benefit analysis because the same was not certified
by the Auditors of the petitioners‟ Banks and also because it was
ex-facie a fabricated document. Incidentally, the Cost Benefit
analysis does not come within the ambit of Bankers Books as
defined in Section 2(3) of the Banks‟ Books Evidence Act, 1891.
The same reads as under:-
"bankers' books"" include ledgers, day-books, cash-
books, account-books and all other records used in
the ordinary business of the bank, whether these
records are kept in written form or stored in a micro
film, magnetic tape or in any other form of
mechanical or electronic data retrieval mechanism,
either onsite or at any offsite location including a
back-up or disaster recovery site of both;"
28. Moreover, the plea that the scheme was un-remunerative was
rejected by the Supreme Court in the case of A.K. Bindal (supra)
observing as under:-
"27. Shri Nageshwar Rao, learned senior counsel
appearing in Transferred Case No. 35 of 2000 (Writ
Petition filed by employees of HFC in Calcutta High
Court) apart from challenging the validity of the
Office Memorandum on the same grounds also urged
that the price of urea was fixed by the Government
under Fertilizer Control Order which was wholly
unremunerative and, therefore, the employees cannot
in any way be held responsible for the losses suffered
by the Units and consequently they should not be
made to suffer on that account. We are unable to
entertain this submission as the factual foundation for
such a plea has not been laid in the pleadings. That
apart, learned counsel for the respondents has made a
statement that the Government had reimbursed the
Units in that regard."
29. Learned counsel further submitted that the banks are
admittedly making huge profits as indicated in paragraphs 180 &
181 of the impugned award. He further submitted that if the
scheme of the banks was going under loss, it was up to the banks to
close or continue with that scheme. If, despite the scheme being
running in loss, the banks are continuing with the said scheme, then
the poor workmen should not suffer for the loss incurred by the
banks in particular scheme.
30. Learned counsel further submitted that the Tribunal referred
to minimum wages in Para 181 of the award to convey the simple
fact that the Collectors could not be paid less than the prescribed
minimum wages. Needless to mention that the Apex Court held
long back in the cases of Bijoy Cotton Mills [ 1955] 1 LLJ 129 and
Crown Aluminum Works [1958] 1 LLJ 1 that an employer, who
cannot pay even the prescribed minimum wages, has no right to
exist. Moreover, Article 43 of the Constitution of India mandates
that the State should endeavour to secure to all the workers a living
wage. Fixing of a minimum wage is just a first step. The
remuneration paid to the Deposit Collectors was not revised since
1988 and the learned Tribunal, vide the impugned award, has only
tried to pull up their remuneration near about the minimum wages
level.
31. Learned counsel further submitted that the plea of the
petitioners that Collectors are not the employees of the banks is
wholly wrong, motivated and false. As per the definition of
workman in section 2(s) of the Industrial Disputes Act, 1947, the
respondents‟ workmen are employees of the petitioners / banks.
32. On the issue of gratuity raised by the petitioners, learned
counsel for the respondent no.1 submitted that the learned Tribunal,
while dealing with the issue of fair remuneration of the Collectors,
merely observed in Para 184 that "....His pay packet would come to
Rs.11000.00 in a month, besides a gratuity of Rs.4000.00 a year."
Therefore, gratuity was just mentioned to show the overall total
income of Deposit Collectors. It is hardly necessary to mention that
gratuity is only a terminal benefit and is to be paid at the time of
exit of the employees. Therefore, mention of the word „gratuity‟
was only by way of an illustration. In any case, this Court may
modify that gratuity shall be paid to the Collectors as per the
Payment of Gratuity Act, 1972.
33. Learned counsel further submitted that another grievance
raised by the petitioners is about the retrospective effect given by
the Tribunal in the award. It will be seen from para 192 of the
award that retrospective effect has been given from 19.07.2005, the
date when the individual banks were summoned to appear before
the Tribunal. It is well settled law that grant of relief is in the
discretion of the Tribunal and the same can be granted either from
the date of raising the dispute or from the date of reference or from
the date of award. Therefore, having regard to all the facts of the
case, the learned Tribunal has given relief to the Collectors from
19.07.2005. It is pertinent to mention that Collectors even now
will be in receipt of remuneration just about equal to the sub-
ordinate staff employed in the banks although they admittedly do
clerical and cash handling work.
34. To strengthen his arguments, learned counsel has relied upon
the case of Sarva Shramik Sangh, Bombay vs. Indian Hume Pipe
Co. Ltd. and Anr.1993 Lab IC 870, wherein the Apex Court held
that the Tribunal can grant relief even with effect from the date
anterior to the date of raising an industrial dispute.
35. On the issue that the learned Tribunal has travelled beyond
the terms of reference, learned counsel for the respondent no.1 has
placed reliance on a Division Bench judgment of the Bombay High
Court in the case of Sheshrao Bhaduji Hatwar vs. P.O., First
Labour Court & others 1992-I LLJ 672 Bom. that even if the
reference is not happily worded, it will not justify short-circuiting
the reference by ignoring the basic background and subjecting the
poor workman to untold misery and hardship.
36. While concluding his arguments, learned counsel submitted
that the Banks have raised all the issues just to frustrate the interests
of the respondent workmen. This Court under Article 226 of the
Constitution of India should not normally disturb the award passed
by the Tribunal on technical grounds. The petitioners have failed to
establish that there is any perversity or illegality on the face of the
award. The learned Tribunal on all the issues has given sufficient
reasons based on evidence on record and the legal position
available. Therefore, the writ petitions are liable to the dismissed.
37. Ms. Rashmi B. Singh, learned counsel for respondent No.2,
in addition to the submission made by the counsel for the
respondent no.1, submitted that during hearing of these petitions,
this Court allowed the petitioners to file some additional evidence
to satisfy the conscious of the Court. The said documents have no
legal sanctity as they are not proved by any of the witnesses.
Moreover, the plea of the counsel for the petitioners that some of
the Collectors deposited the same amount in the account of the
depositors on a number of times in a year. They used to open the
account, deposit the amount and thereafter close the account. This
type of practice, if continued because of the fault of the petitioners,
the respondent workmen cannot be blamed for that. The petitioners
are free to make guidelines relating to the life of the deposits and
only thereafter they can give commission to the Collectors. If it is
presumed that has happened in a few cases, the interest of the
workmen cannot be put on jeopardy only for the sake that some of
the Collectors are misusing the scheme which can be curtailed by
the petitioners banks themselves.
38. On the other issues, learned counsel has supported the
arguments of learned counsel for the respondent no.1 and submitted
that the petitioners have only raised technical issues without any
basis and evidence which has to be rejected and the petitions
deserve to be dismissed.
39. I have heard learned counsel for the parties.
40. The respondent no.1 Federation pleaded before the Tribunal
that bank managements resorted to reducing rates of commission
from 3.5% to 2% for collection over and above Rs.7500/- per
month. Bank managements also took steps to recover excess
amount paid from 1997. Above steps were illegal and unwarranted.
Banks have been paying 3.5% commission from 1978 to 2002 and
subsequently reduced it to 2%. In fact, the Association mistook the
incentive remuneration as commission. The Federation further
projected that incentive remuneration is part of the fall back wages
for doing clerical work in the banks and the commission is for
manual work done by the Collectors in collecting the amount. The
Industrial Tribunal, Hyderabad, Andhra Pradesh High Court and the
Apex Court did not strike down the contract between the Deposit
Collectors and the banks, hence banks were paying 3.5%
commission for the manual work. Accordingly, linkage of fall back
wages of Rs.750/- determined by Industrial Tribunal, Hyderabad,
vide award dated 22.12.1988, which was based on consumer price
index at 500 points (base 1960 = 100 points), has become totally
out of date due to afflux of time and tremendous rise in prices in
last 15 years. The fall back wages are required to be adjusted
upwards, related to the present consumer price index. Fall back
wages of Rs.750.00 was linked to minimum deposit of Rs.7500/-
per month. This linkage was based on consumer price index at 500
points. At present, consumer price index stands at 2438 points.
Moreover, Tenth Five year plan has projected annual growth rate of
8% in GDP as its target.
41. The State Governments have fixed minimum wages on
upward side consistently. In order to show justification of linkage
of fall back wages of the Collectors, with All India Consumer Price
Index, the Federation details the amount of minimum wages, fixed
by the Government of NCT Delhi from time to time. In the year
1988 minimum wages for unskilled was Rs.562/- and for
matriculate Rs.750/-. Whereas in the year 2003, the minimum
wages for the aforesaid two categories were Rs. 2783.90 and
3231.90 respectively.
42. It is pertinent to mention here that the claim filed by the
Federation before Industrial Tribunal, Hyderabad was that
minimum wages in the region of Rs.800/- at 500 points in the All
India Consumer Price Index for industrial workers on the basis of
comparison of different wage structures in public sector
undertaking may be awarded in their favour. The respondent no.1
claimed only Rs.750/-, which was linked to 500 points without
claiming any dearness allowance thereon. Incentive remuneration
of 5% on deposits collected in excess of Rs.7500 was also claimed,
apart, benefits of weekly holidays, national festivals, annual leave
with wages, sick leave, medical leave and retiral benefits.
43. Accordingly, the Industrial Tribunal, Hyderabad, answered
the reference as follows:
"(i) All the deposit collectors and agents who are
below the age of 45 years as on October 1980 (the
date of reference to the Tribunal) shall be considered
for regular absorption in the post of clerks and
cashiers if they are matriculates and above, including
qualified graduates and post graduates. Those who
are absorbed shall be treated at par with regular
clerical employees of the banks. Those who are
qualified with 8th class and below matriculate shall
be considered for absorption as sub staff by taking
qualifying examination.
(ii)As regards deposit collectors and agents who are
above 45 years of age as on 03.01.1980 and also
those who are unwilling to be absorbed in regular
bank service, they shall be paid fall back wages of
Rs.750.00 per month linked with minimum deposit of
Rs.7500.00 per month and they should be paid
incentive remuneration at 2% for collection over and
above Rs.7500.00 per month and they should also be
paid uniform conveyance allowance of Rs.50 per
month for deposits of less than Rs.10,000,.00 and
Rs.100 per month for deposits of more than Rs.
10,000.00 or upto or above Rs.30,000.00 per month.
They should be paid gratuity of 15 days commission
for each year of service rendered."
44. The Award dated 22.12.1988, passed by Industrial Tribunal,
Hyderabad, was assailed by Syndicate Bank before the High Court
of Andhra Pradesh whereby the writ of Syndicate Bank was partly
allowed as under:
"On conspectus of consideration, the award reached
the conclusion that deposit collectors are workmen of
the respective banks though they are not and also
cannot claim to be regular employees. In view of the
conclusion, it necessarily follows that the scheme
evolved by the Tribunal in Para 69 of the award for
absorption of the deposit collectors who are below 45
years of age as on 03.10.1980 has to go. But the
award also directed that the deposit collectors who
are above 45 years and those who are not willing to
be absorbed as regular employees, be paid fall back
wages of Rs.750.00 linked with minimum deposit of
Rs.7500.00 per month plus incentive remuneration at
2%. Besides such unabsorbed deposit collectors were
also made entitled to conveyance allowance of Rs.50
per month for deposit of less than Rs.10,000.00 and
Rs.100 per month for deposits of more than Rs.10000
upto or above Rs.30,000.00 per month. Besides, they
were also entitled to gratuity of 15 days commission
for each year of service rendered.
Now that we find that all deposit collectors are
only workmen and none can be absorbed as regular
employees, all of them have to be treated as only one
category. The award would hence uphold and apply
the decision of the Tribunal for payment of fall back
wages and inventive commission as well as
conveyance allowance and gratuity to the deposit
collectors as workmen. The award has been modified
accordingly."
45. Being aggrieved, the Association challenged the judgement
dated 28.03.1997, delivered by High Court of Andhra Pradesh
before the Supreme Court which ruled as under:-
"We have considered the rival submissions. In our
view, Shri Sharma was right when he submitted that on
the basis of evidence before it, the Tribunal has given
findings to the effect that the deposit collectors are
workmen within the meaning of section 2(s) of the
Industrial Disputes Act, 1947. On the evidence on
record, it cannot be said that that the finding was
unsustainable. Having been shown relevant evidence,
we are also of the opinion that the Tribunal correctly
arrived at a conclusion that these deposit collectors
were workmen."
46. On the issue of grant of pay scales, allowances & other
service conditions and on continuance of the schemes the Apex
Court concluded as under:-
"In the present case, not only are mode of selection
and qualification not comparable but even the work is
not comparable. Work which the deposit collectors
perform is completely different from the work which
regular employees do. There was no question of the
deposit collectors being paid the same pay scales,
allowances and other services conditions as regular
employees of the bank.
........................................................................
The award also showed no substance in the contention
that these schemes are un-remunerative. Banks have
introduced these schemes because they want to
encourage common man to make small and regular
deposits. As a result of such schemes, number of
depositors have become much large. We have no
doubt that such schemes are continuing because the
banks find them remunerative. Banks have large
collection through such schemes."
47. It is pertinent to note that the Apex Court held that Collectors
are workmen within the meaning of section 2(s) of the Industrial
Disputes Act, 1947. They are required to be compensated properly
and adequately by the banks. The fact that other employees
working in the banks are being paid good fair wages and capacity to
pay of the banks is well known. A sum of Rs.750/- fixed by
Industrial Tribunal, Hyderabad, is far below even the subsistence
level in the year 2003. Therefore, fall back wages cannot be below
minimum wages, fixed by the State Governments from time to time.
Concept of fall back wages would mean that minimum wages
must be paid regardless of all other facts.
48. It is further pertinent to note that respondent no.1 moved an
application under section 18(3) of the Act on 31.01.2005 before the
Tribunal whereby pleaded 48 banks, as named in para 23 of the
award, and most of the banks are party before this Court. None of
the bank had challenged their impleadment, however, defended
their cases before the Tribunal.
49. On pleadings of parties, the learned Tribunal framed the
following issues:-
"(i) As per terms of reference sent by Government of
India.
(ii) Was there any privity of contract between the
concerned workmen and the IBA? If not, what
are consequences?
(iii) Relief."
50. As regards the issue no.(ii) as noted above, undisputedly the
appropriate Government referred the dispute for adjudication to the
Tribunal. In its written statement, the Association took an objection
that it is neither employer of the Collectors nor it lays down terms
and conditions of their engagement. Collectors are persons engaged
by the respective banks on the basis of their individual contracts to
work on commission basis. Such individual contracts are between
the banks and the deposit collectors and as such, on any matter or
matters which is/are part of the contracts, they cannot raise any
grievance against the Association. Accordingly, the learned
Tribunal allowed the application under section 18(3) and impleaded
48 banks as mentioned above.
51. No doubt, it is not open to the Tribunal to travel materially
beyond the terms of reference, which determine the scope of its
powers and jurisdiction from case to case. However, provisions of
section 10(1)(d) of the Act empowers the appropriate Government
to refer the dispute or any matter appearing to be connected with,
or relevant to the dispute, whether it relates to any matter specified
in the Second Schedule or the Third Schedule, to a Tribunal for
adjudication. Section 10(4) of the Act provides, that jurisdiction of
an Industrial Tribunal would be confined to points of dispute
specified by the order of reference and adds that the said
jurisdiction may take within its sweep matters incidental to the said
points. In other words, where certain points of disputes have been
referred to an Industrial Tribunal for adjudication, it may while
dealing with the said points, deal with the matters incidental thereto,
if the Tribunal feels that some persons who are not joined to the
reference should be brought before it. Accordingly, the Tribunal
has power to make an order in that behalf under section 18(3)(b) of
the Act. In the case in hand, the petitioners banks, where Collectors
are working, initially were not made parties to the dispute.
Addition of the banks was necessary to make adjudication effective
and enforceable.
52. Admittedly, the banks impleaded in the array of parties are
the employers of the collectors. Thus, the Tribunal has not
materially enlarged the scope of reference by summoning the banks
to participate in the proceedings.
53. It is not in dispute that 40 banks filed their respective written
statements and contested claims put forward by the Federation as
well as the Union. Admittedly, the collectors represented by the
Federation /Union, work with those banks, who have been added as
parties to the dispute. Since, initially, the reference was qua only the
Indian Banks Association and, thereafter, joining of 40 banks with
their respective statements to issue no.1, the issue no.2 has become
redundant as rightly held by the Tribunal.
54. The learned Tribunal has justified by giving example of other
organized sectors, viz., steel, power, transport, textiles etc., which
show that even a decade back workers employed in these sectors
were getting Rs.2130/- to Rs.2850/- per month, besides other fringe
benefits like annual increments, variable dearness allowance, house
rent allowance, compensatory allowance, washing allowance,
children education allowance, transport subsidy and uniforms etc.
However, no such benefits are available to the Deposit Collectors.
55. Moreover, Seventh Bipartite Settlement, entered into by the
banking industry which fixed minimum basic pay of sub staff at
Rs.2750/- per month, besides dearness allowance, house rent
allowance and city compensatory allowance. Minimum basic pay
for clerical staff has been fixed at Rs.3020/- per month besides
above benefits. Fall back wages for collectors was fixed at Rs.750
per month, when an employee of clerical grade in the bank was
getting basic pay of Rs.520/- besides above benefits. His total
salary used to come around Rs.750/- per month. Minimum wages
of workmen in various industries have gone upwards, as compared
to the year 1983. There is a manifest justification for enhancement
in fall back wages of at least Rs.5000/- for collection of
Rs.50,000/- per month to compensate the Deposit Collectors for
increase in cost of living.
56. It is not in dispute that minimum wages are required to be
paid to any industrial labour. In other words, minimum wages is
lowest wage below which efficiency of workmen is likely to be
impaired. The concept of minimum wage is not fixed and static,
since it varies from time to time and from place to place. Moreover,
Tripartite Committee of Indian Labour Conference held in 1957
declared that wage policy to be followed irrespective of the extent
of profits, the financial condition of the establishment or the
availability of workmen on lower wages. Thus, minimum wage
applies to all alike big or small. A fair wage is thus related to the
earning capacity and work load. It must be sufficient to provide not
only essentials, but fair measure of frugal comfort, with an ability to
provide for old age and evil days.
57. No doubt, for fixation of wage structure, industrial
adjudicator had to take in account the counter balancing
circumstances. In the present case, all the banks are admittedly
earning profit from the business. This fact has been admitted by all
the witnesses examined by the petitioners as well as the
respondents, as have been discussed in detail by the learned
Tribunal. It is not a matter of dispute that the collectors are
workmen within the meaning of section 2(s) of the Act, who are not
awarded scales of wages applicable to the employees of the banks.
They are a special class in themselves. Neither they are classified as
part time employees nor permanent employees. However, for the
purpose of assessment of their fall back wages and incentive
remunerations, it would be taken note of as to what quantum of
wages a part time employee gets from the banks. The 9th Bipartite
Settlement, signed on wage revision, pension and other service
conditions between the Association and their workmen represented
by their various Unions on 27.04.2010, details wages paid to a part
time employee. Clause 21 of the said settlement provides as
follows:
"In substitution of Clause 21 of the Bipartite Settlement
dated 2nd June 2005, with effect from 1st November 2007,
Part-Time employees who are members of the
subordinate staff on consolidated wages and whose
normal working hours per week are "upto 3 hours‟ and
"more than 3 hours but less than 6 hours" shall be paid
one third scale wages w.e.f. 1st May 2010. From 1st
November 2007 to 30th April 2010, they shall be paid
consolidated wages as under:
a. Upto 3 hours : at bank‟s discretion with a
minimum of Rs.1030/- p.m.
b. More than 3 hours but less than 6 hours: at bank‟s
discretion with minimum of Rs.1140/- p.m.
The employees recruited on or after 1st May 2010 in
part-time:scale wages shall be at minimum of one third
scale wages."
58. It cannot be in dispute that the Collectors perform clerical
duties, since they collect deposits from the account holders, issue
receipts to them and account for the money so collected to the
banks. Though Deposit Collectors are not part time employees but
assuming them to be so, they would get 1/3rd of scale wages of the
clerical staff, besides an amount equivalent to the other benefits
paid to such employees. Their basic fall back wages would be
Rs.2400/- per month, besides other allowances admissible as per
rules. On that standard, fall back wages of the Deposit Collectors
shall be primarily Rs.5,000/- per month. Moreover as emerged out
of the award Ex.WW1/3, rendered by Hyderabad Tribunal,
Collectors get fall back wages of Rs.750/- on a collection of
Rs.7,500/-per month. On collection over and above Rs.7,500/- per
month, they get incentive remuneration of 2% assuming that
Rs.3,00,000/- per month is collected by a Deposit Collector, his fall
back wages and incentive remuneration would be Rs.6,600/-
[(Rs.750/- that fall back wages) + Rs.5,850/- (incentive
remuneration)]. Thus, it is obvious that a Collector is getting less
than the minimum wages, notified from time to time and even less
than a deemed part time clerical staff. On perusal of award Ex.WW-
1/C, the main thrust of the Tribunal was whether the Collectors
were commission agents or employee of the banks. Accordingly,
the Learned Tribunal at Hyderabad held that the
respondent/workman should be paid a fall back wages of Rs.750/-
per month, linked with minimum collection of Rs.7,500/- per
month. They should also be paid incentive remuneration at 2% for
collection over and above Rs.7,500/- per month and also be paid
uniform affirming allowance of Rs.50/- per month for depositing of
less than 10,000/- and Rs.100/- per month for deposits of more than
Rs.10,000/- or up to or above Rs.30,000/- per month.
59. In respect of the other demands, fixation of fall back wages
and incentive remuneration, the Learned Tribunal of Hyderabad
ruled out that the Deposit Collectors or agents, are not entitled to
weekly holidays, national and festival holidays, annual leave and
sick leave. They were virtually enjoying those benefits by virtue of
non-functioning of banks on weekly holidays and paid national and
festival holidays. They were also entitled to enjoy leave account to
their own choice after intimating the bank as regards the retirement
benefits. As held by the Learned Tribunal, they cannot claim any
provident fund or pension but they should be paid gratuity of 15
days commission for each year of service rendered. They are not
entitled to medical and hospitalisation charges and the insurance as
regular employees. They would be entitled to such benefits only
after they are regularly absorbed in the bank services.
60. Except the above treatment of alteration relief of the
federation, the Learned Tribunal at Hyderabad nowhere linked
relief of fall back wages and incentive remuneration to All India
Consumer Price Index. When High Court of Andhra Pradesh
exercised power of judicial review, none of the parties raised the
issue to the effect that the fall back wages and incentive
remuneration were linked to All India Consumer Price Index.
Therefore, there was no occasion for High Court of Hyderabad to
consider as to whether fall back wages and incentive remuneration
were linked with All India Consumer Price Index or not. The Apex
Court too was not invited to deal the issue that the fall back wages
and incentive remuneration, awarded in favour of the Deposit
Collectors, were linked to All India Consumer Price Index. In
reference order, appropriate Government tried to project that the fall
back wages and incentive remuneration, granted in favour of the
Deposit Collectors, have link with All India Consumer Price Index.
Resultantly, the Learned Tribunal concluded that fall back wages
and incentive remuneration awarded to the Deposit Collectors have
no link with All India Consumer Price Index.
61. In case of a Deposit Collector, who collects a sum of
Rs.3,00,000/- per month, gets only a sum of Rs.6,600/- (Rs.750/- as
fall back wages + Rs.5,850/- as incentive remuneration). Collection
of a sum of Rs.3,00,000/- per month is a moderate amount but fall
back wages and incentive remuneration, which would come in the
hands of a Deposit Collector would be less than minimum rates of
charges, notified for a matriculate clerk.
62. It is well established that an employer has a right to organize
or re-organize his business in any fashion, for the purpose of
convenience of better administration for achieving economy,
productivity or profitability, subject to the limitation that in doing
so, he does not contravene any Regulation or other laws.
63. It is pertinent to record that if these schemes are not
reproductive, what prevented the banks to close down such
schemes. Admittedly, the Pigmy Deposit Scheme was started by
Syndicate Bank in the year 1967 in southern part of the country.
The scheme attracted other banks too, where it was initiated when
those banks were having small number of its branches in semi urban
and rural areas of the country. With the extension of banking
industry, branches of the banks increased manifold with opening of
branches in semi-urban and rural schemes. It is not disputed that in
some of the banks, the scheme has been closed but such a decision
was taken on other consideration, besides economic factors.
64. The Apex Court has affirmed the decision of the State Bank
of India in respect of closure of its scheme, vide its order dated
28.02.2008 passed in transfer case (Civil) No. 79/2005 titled as A.P.
Bank Deposit Collectors Association vs. State Bank of India. Thus,
it is clear that the banks are free to close its scheme if it is not
economically profitable. But in case, banks opt to continue with the
scheme, they cannot be allowed to pay fall back wages and
incentive remuneration which are less than minimum charges
notified from time to time. An industry has to pay minimum wages
to its workmen. As held by the Apex Court, the collectors are
workmen, a class in themselves, who had a right to receive
minimum charges in the form of fall back wages and incentive
remuneration.
65. It is settled law that for fixation of rates of wages, an
Industrial Tribunal has to see the financial capacity of the industry
as a whole to pay. Moreover, financial capacity of an employer and
financial capacity of a particular unit is to be taken into
consideration.
66. Undisputedly operating profits of the banking industry have
increased by Rs.70,790/- crores while net profits have gone up by
27,800/- crores. Therefore, it has emerged from the record that the
banking industry has financial capacity to pay higher fall back
wages and incentive remuneration. Financial capacity of a
particular bank has also been substantiated through the depositions
of the witness produced by the petitioners and respondents, who
deposed that the banks are earning profit from the last many years.
Therefore, it is established that not only the banking industry as a
whole, but individual banks, where small deposits scheme is being
run, have financial capacity to pay higher fall back wages and
incentive remuneration to the Deposit Collectors, engaged by them.
Accordingly for „A‟ area city, like Delhi, fall back wages for
Deposit Collectors should not be less than Rs.9,386/-.
67. For ascertaining the limit of collection, it is to be noted as to
what amount of money is being collected by the Deposit Collector
in a month. Sh. Pommuswamy witness of the workman stated that
in the year 1978, he used to collect a sum of Rs.3,00,000/- per
month. As on date, (he entered in the witness box in the May 2011)
was collecting a sum of Rs.12,00,000/- approximately in a month.
Similarly, Ashish Bilala declared that he has been earning a sum of
Rs.12,000/- to 13,000/- per month as fall back wages and incentive
remuneration. He deposed that he has been collecting a sum of
Rs.6,50,000/- from account holders. Accordingly, Sh. Ashok Kumar
has been collecting a sum of Rs.1,50,000/- to Rs.2,00,000/- per
month from the account holders. It is pertinent to note that Sh. I.P.
Ponnusamy has been operating in „A‟ area city while other
witnesses except Bilala have been operating in „B‟ area cities.
Sh. Bilala has been operating in „C‟ area city. Accordingly, the
Collectors operating in „C‟, „B‟ and „A‟ area cities would collect
Rs.3,00,000/-, Rs.4,00,000/- and Rs.5,00,000/- per month
respectively. On collections over and above Rs.3,00,000/-, but upto
Rs.5,00,000/-, a Collector would get an incentive remuneration of
3% and on collections over and above Rs.5,00,000/- per month, he
will get incentive remuneration of 2% only. Therefore, a Deposit
Collector of B area city who had to collect a minimum of
Rs.4,00,000/- per month, will get fall back wages of Rs.8,000/-
besides incentive remuneration of Rs.300/- per month. Thus, by
collecting more than Rs.5,00,000/- in a month, the Deposit
Collectors may earn more. The amount, which will come to them
towards fall back wages and incentive remuneration, would be over
and above, the minimum charges, so notified by making that
payment to the Deposit Collectors, the banks would not be
constrained financially at all. The fall back wages and incentive
remuneration, as referred above, have rightly been compared to the
wages earned or a deemed part time of clerical staff, employed in
the bank and the minimum wages for a skilled clerical staff in a
scheduled employment.
68. I note that the Learned Tribunal recorded in the impugned
award that conveyance allowance is being paid to the Collectors
@ Rs.50/- per month for deposit of less than Rs.10,000/- and
@ Rs.100/- per month for deposit of Rs.10,000/- over and above
upto Rs.30,000/- per month. This quantum of conveyance
allowance was demanded by the federation, when it filed its claim
before the Industrial Tribunal of Hyderabad in the year 1981. The
Industrial Tribunal granted the relief in toto and fixed conveyance
allowance for the Collectors at the above rates. Since 1981 till date,
price of petrol has roled many times. The Deposit Collectors had to
reach persons of lower and middle income group, small traders,
businessman, artists and self employed persons and house wives to
collect money from them. These facts have established that a
Deposit Collector has to reach his customer, according to
convenience of the latter. For that purpose, possibility of going for
collection twice or thrice a day, cannot be ruled out. One cannot
dispute that in „C‟ area as well as „B‟ area cities, the collectors may
have to travel in a radius of 10 kilometres daily. In „A‟ area city, he
may travel a little bit longer. One cannot be oblivious of the fact
that these days such bikes are in the market which are fuel efficient.
Manufacturers claim that such bikes have fuel efficiently of running
generally 60 kilometres per litre. A Deposit Collector in „C‟ and „B‟
area cities may have to travel roughly 500 kilometres in a month.
For „A‟ area city, a Deposit Collector may avail public transport
also. Accordingly, the Learned Tribunal opined that at least 8 to 10
litres of petrol in a month is to be spent by a collector.
Accordingly, a sum of Rs.9,000/- per year has been granted towards
conveyance allowance.
69. As per award Ex.WW-1/3 the fixation of fall back wages and
incentive remuneration was based on the circumstances prevalent in
the year 1981. Fall back wages and incentive remuneration fixed
by award dated 22.12.1988, remained static till date. The present
dispute was raised by respondent No. 1 in the year 2003. After
raising of the dispute and during the course of the adjudication, a
few of banks closed their small deposit schemes. Accordingly, the
Learned Tribunal held that in case this award is not given to any
retrospective effect than the Collectors of banks, who had closed the
schemes, would not be eligible to get any relief out of it. Therefore,
the Learned Tribunal has held that the demand of federation/union
for enhancement of fall back wages and incentive remuneration,
besides conveyance allowance is justified. Accordingly, the
Learned Tribunal has given the Award retrospective effect from
19th July, 2005, the date when the banks were summoned to appear
before the Tribunal.
70. Admittedly, issue of gratuity was not part of reference.
However, learned Tribunal has held that the respondents will also
get gratuity of Rs.4,000/- every year. It is also not in dispute that in
case of Indian Banks' Association (supra), Hon‟ble Supreme
Court, held that Deposit Collector can be treated as regular
employees of the Bank, though they may be „workmen‟ under the
Industrial Disputes Act. Moreover, there was no pleadings on this
issue.
71. Keeping in view the above discussions, I find no discrepancy
in Award dated 07.10.2013, except the gratuity part. Accordingly,
order on gratuity is hereby set aside. However, liberty is granted to
the respondents to claim gratuity, if they are entitled, under the
Payment of Gratuity Act, 1972 before the appropriate forum.
72. The petitions are partially allowed with no order as to costs.
73. All the pending CMs stand disposed of being infructuous.
SURESH KAIT
(JUDGE)
April 20, 2015
RS/Rita
