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Krishna Gopal Bhatawadeker and anr. Vs. Imperal Bank of India and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 944 of 1955
Judge
Reported in(1956)IILLJ229Bom
ActsCode of Civil Procedure (CPC), 1908 - Sections 7, 7(1), 9 and 9(7) - Order XLI, Rule 33
AppellantKrishna Gopal Bhatawadeker and anr.
Respondentimperal Bank of India and ors.
Excerpt:
.....and make decision of tribunal perfectly clear - writ liable to be dismissed. - - the sastri tribunal was satisfied with the justice of the employees' demands with regard to their compulsory contribution and their view was that the imperial bank was sufficiently financially sound to pay the pension out of its own revenues and it should not insist upon contributions from its employees and, therefore, they came to the conclusion as evidenced by para. phadke is that this direction clearly means that the award of the tribunal was that the bank should refund to its employees all the contributions they had made to the pension fund from 1931 onwards. ' 6. therefore, partly the direction was modified on merits in favour of the employees, because whereas the sastri tribunal had..........was that the sastri tribunal, after holding that the bank would not be legally compelled to refund contributions made to the pension fund, by a device ordered the bank to pay gratuity. if the tribunal had no jurisdiction to alter the pension fund as demanded by the employees, then the tribunal could not concede that demand by a device which converted the demand for pension into a demand for gratuity. in this respect alone there would be a right of appeal in the bank. the bank also took the view - a view which has been so eloquently pressed before us by mr. phadke - that the direction given by the sastri tribunal was that the bank should refund all the contributions from 1931. if that was the view taken by the bank, the bank was entitled to appeal, contending that the sastri tribunal.....
Judgment:

Chagla, C.J.

1. This is a petition by an employee of what was once the Imperial Bank of India and is now the State Bank of India, challenging the decision of the Labour Appellate Tribunal with regard to a question which arises out of the Bank award given by the Sastri tribunal. It appears that two demands were put forward by the employees of the Imperial Bank with regard to the pension fund. In order to understand these demands it is necessary to consider the history of this fund. Up to 1931 the pension fund was maintained by the bank out of its own revenues. But after 1931 the bank passed a resolution to the effect that every employee who wanted to join this pension fund must contribute 5 per cent of his salary to this fund and, therefore, after 1931 the pension fund was maintained by the contributions of the bank and the 5 per cent contributed by the employees. In connexion with this fund two demands put forward by the employees of the Imperial Bank were (1) that the employees' compulsory contribution should be stopped and (2) that the amounts contributed till now must be refunded to them. The Sastri tribunal was satisfied with the justice of the employees' demands with regard to their compulsory contribution and their view was that the Imperial Bank was sufficiently financially sound to pay the pension out of its own revenues and it should not insist upon contributions from its employees and, therefore, they came to the conclusion as evidenced by Para. 403 of the award that the 5 per cent contribution for the pension fund by a workman should now be stopped. Then the tribunal goes on to observe that they would have provided for the abolition of this contribution in the pension fund itself, if it had been agreed to by the bank or if it had been legally possible. They could not give this direction in the absence of the trustees of the pension fund in whom the pension fund was vested and the tribunal goes on to say that 'the pension fund may be left undisturbed for the present so far as this matter is concerned, but the same objective could be achieved by directing a special gratuity of an amount equal to the amount of the contribution by a workman and the interest thereon as standing to his credit in the pension section of that fund.'

2. Now, what is urged by Mr. Phadke is that this direction clearly means that the award of the tribunal was that the bank should refund to its employees all the contributions they had made to the pension fund from 1931 onwards. With every sympathy that we have for the employees of the bank we find it extremely difficult to accept that contention put forward by Mr. Phadke. There is evidence in this part of Para. 403 itself that the tribunal did not and could not have given that direction. But apart from Para. 403, there is ample evidence in the other parts of the award which equally makes it clear that this particular direction was limited to the refund by way of special gratuity of contributions made by the employees to the pension fund after this award and after the decision of the tribunal. When the tribunal says that they have discovered a particular device to achieve the same object, we must ask ourselves what is the objective that the tribunal wanted to achieve and the earlier part of Para. 403 makes it quite clear that the objective was that the further contributions to this pension fund on the part of the employees should stop. The tribunal points out the difficulties in the way of their carrying out that objective in the ordinary simple manner by giving a direction to the bank to stop the contributions and confronted with the legal difficulties in the interests of the employees they resort to a device by which they direct the bank to pay a gratuity to the employees. In our opinion, it is impossible to accept the contention of Mr. Phadke that the gratuity which the tribunal directed was not a gratuity with regard to contributions made to the pension fund after the date of the award but the gratuity related to all the contributions made by the employees from 1931 onwards. We must find somewhere in the award itself a decision on merits by the tribunal with regard to the specific claim put forward by the employees that the past contributions should be refunded. In Para. 403 they are not dealing with that demand at all. They are dealing with the first demand, viz., that the employees' compulsory contribution should be stopped. With regard to the second demand, i.e., the amounts contributed till now must be refunded to them, the same is dealt with in the latter part of the report to which we shall presently come. Then dealing further with Para. 403, they deal with and dismiss the objection of Mr. Lawrie who appeared on behalf of the Imperial Bank of India to the suggestion that this gratuity should be paid and they finally express their opinion that an extra special gratuity directed by them under this paragraph is, therefore, just and reasonable. This paragraph appears in Chap. XIX of the award which deals with item 14 of the demands of the employees of the banks, which demand is concerned with gratuity and it is rather significant that whereas they are dealing with the question of pension, they should have incorporated this directive in the chapter of gratuity. But these was a reason why they did it because, as we have already pointed out, they could not legally accede to the demand of the employees with regard to the abolition of the contributions to the pension fund and as they could not do that but as the tribunal felt that they could achieve the same result by giving a special gratuity they incorporated this directive in Chap. XIX and conceded this demand of the employees in the form of a gratuity. Then Chap. XX, the next chapter, deals with the pension scheme and Para. 411 sets out the four demands, two of which have already been referred to which are germane to the arguments before us and then we come to Para. 413 and in that paragraph they deal with arguments of Mr. Niren De from Calcutta who appeared for the employees and they say that

'Mr. De strongly pressed for the abolition of the rule relating to compulsory contribution. He admitted, though only for the proceedings before this tribunal, the validity of the trust deed and the constitution of the pension and guarantee fund. He reserved to himself the right to question them elsewhere. He also did not press for relief as regards the refund of the contributions made in the past. He reserved the right to take proceedings elsewhere with respect to that matter if so advised.'

3. In our opinion there is a clear concession by counsel that as far as the second demand referred to in Para. 411 is concerned, that demand was not being pressed and the right to take appropriate proceedings in some other matter or in some other court or tribunal was being reserved by counsel. Therefore, having disposed of the second demand on the concession made by counsel in Para. 414, the tribunal proceeds to consider the first demand which is the demand with regard to the compulsory contributions being stopped. Then they deal with the merits of the matter and they say towards the close of this paragraph that 'agreeing with the view of Sri Gupta and also of the Sen Tribunal we are of opinion that the employees' contributions should be stopped.' Then again they refer to the legal difficulty and they repeat the same language which they have repeated in Para. 403 :

'We however think that the same objective can be achieved in another way. We direct that so long as these rules remain unaltered and provide for compulsory contribution by employees the bank should pay a special gratuity to employees as provided for by us in our award in the chapter relating to gratuity. In this view it is unnecessary to deal with this matter here any further.'

4. Therefore looking at both the chapters and looking at the relevant paragraphs it is difficult, if not impossible, to take the view that the Sastri tribunal was awarding in favour of the employees a refund by the bank of all the past contributions from 1931 onwards.

5. In this state of the record an appeal was preferred to the Labour Appellate Tribunal and the Labour Appellate Tribunal considered the decision of the Sastri tribunal and came to the conclusion that that tribunal had not awarded the refund of past contributions but that the direction was confined to contributions to be made by the employees after the decision of the tribunal. In Para. 364 they modify that award by substituting for that direction another direction and they say that they are doing so in order to give effect to the intention of the tribunal, and the modified paragraph is :

'The contribution of 5 per cent by the workmen to the pension fund shall cease, and the bank is directed to take the steps necessary to ensure this. Employees shall receive the existing pension benefits without payment of any contribution. If any contribution is realized from any workman-employee towards the fund after the pronouncement of our decision, the bank is directed to pay to the workman or his representative on the termination of his employment a special gratuity equal to his contribution and the interest thereon standing to his credit in the accounts of the fund at the date of the termination of his service.'

6. Therefore, partly the direction was modified on merits in favour of the employees, because whereas the Sastri tribunal had failed or omitted to give any direction to the bank to modify the pension fund rules, the Appellate Tribunal gave a specific direction to the bank to modify the rules and to stop taking contributions from the employees. With regard to the rest the order contained a clarification of the directive given by the Sastri tribunal and the clarification was that if after this award any contribution was taken by the bank before the rules were altered or amended this contribution was to be refunded. Mr. Phadke does not object to the first part of this directive but his objection is against the second part which is, as we have said, a clarification of the order passed by the Sastri tribunal.

7. The first objection is on the ground that no appeal on this point lay to the Labour Appellate Tribunal. Undoubtedly, as we have often pointed out, the Labour Appellate Tribunal is a court of appeal with limited jurisdiction and this jurisdiction is confined to subjects referred to in S. 7 of the Act constituting that body. It is urged by Mr. Phadke that the case does not fall under S. 7(1)(b), as the appeal did not refer to any of the matters referred to in that sub-section. Mr. Seervai countered this by pointing out that under sub-section (1)(b)(v) of S. 7 an appeal lies from a decision with regard to gratuity payable on discharge and Mr. Seervai says that the decision of the Sastri tribunal was that when the employee retired, he should be given the amounts contributed by him by way of special gratuity and from that decision an appeal undoubtedly lay. A rather interesting point has been raised by Mr. Phadke that 'discharge' in this expression must be strictly construed to mean discharge before superannuation and not retirement of the employee by reason of superannuation. Such a construction, if accepted by us, would considerably curtail the right of the employees and also of the employers to appeal on the important question of gratuity. We find it difficult to understand on principle as to why there should be a right of appeal with regard to gratuity payable on discharge and not with regard to gratuity payable on retirement. If 'discharge' is used in its wider connotation, it may conceivably mean the retirement of the employee from the service for any reason whatsoever or 'on discharge' may mean on cessation of the services of the particular employee with the employer. In our opinion, it is unnecessary to decide this question on this petition, because in our view an appeal lies under S. 7(1)(a) because it undoubtedly involved a substantial question of law. The first question of law which the appeal involved was that the Sastri tribunal, after holding that the bank would not be legally compelled to refund contributions made to the pension fund, by a device ordered the bank to pay gratuity. If the tribunal had no jurisdiction to alter the pension fund as demanded by the employees, then the tribunal could not concede that demand by a device which converted the demand for pension into a demand for gratuity. In this respect alone there would be a right of appeal in the bank. The bank also took the view - a view which has been so eloquently pressed before us by Mr. Phadke - that the direction given by the Sastri tribunal was that the bank should refund all the contributions from 1931. If that was the view taken by the bank, the bank was entitled to appeal, contending that the Sastri tribunal had no jurisdiction to award in favour of the employees refund of all the contributions made from 1931. It could urge that such a directive could not be given because the pension fund vested in the trustees and the trustees were not before the tribunal and also on the ground that a concession was made by counsel for the employees that that demand had been given up. Therefore, in our view the decision of the tribunal clearly involved a substantial question of law.

8. If the appeal did lie to the tribunal, the next question is whether the Appellate Tribunal could have passed the order which it ultimately did. Mr. Phadke says that it was not open to the Appellate Tribunal to look to the intention of the Sastri tribunal. If it agreed with what the Sastri tribunal had done, then it should have left the matter at where it stood and left it to the executing tribunal to construe the award given by the Sastri tribunal. In our opinion that contention is based upon much too narrow a view of the powers of the Appellate Tribunal. Under S. 9 of the Act the Labour Appellate Tribunal has the same powers as the court of appeal has under the Civil Procedure Code and under Sub-section (7) it is expressly provided that the Appellate Tribunal may confirm, vary or reverse the award or decision appealed from and may pass such orders as it may deem fit, and where the award or decision is reversed or varied, the decision of the Appellate Tribunal shall state the reliefs to which the appellant is entitled. Reading this with order XLI, rule 33, it is quite clear that it was open to the Labour Appellate Tribunal to clarify the decision of the Sastri tribunal and to pass such order as ought to have been passed by the Sastri tribunal itself. It is one of the duties of an Appellate Court to see that the decree passed clearly sets out the rights and liabilities of the parties and that no difficulty should arise in executing that decree. Therefore, if the view was put forward that the decision of the Sastri tribunal was liable to a particular interpretation and if the Appellate Tribunal took the view that that interpretation was erroneous, that that interpretation was contrary to law and that the tribunal could never have intended to decide that way, then the proper thing that the Appellate Tribunal should have done was to clarify the decision of the Sastri tribunal and make it perfectly clear what that decision meant and what the decision ought to have been. That is exactly what the Labour Appellate Tribunal has done. It has modified the order of the Sastri tribunal by substituting for it an order which clearly and without ambiguity states what the Sastri tribunal itself intended to state but perhaps failed clearly to state in the order passed by them.

9. In our opinion, therefore, the petition must fail and is dismissed. No order as to costs.


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