1. These two Writ Petitions are by the management of Canara Bank, Bangalore, praying for quashing the award of the Central Government Industrial Tribunal, No. 2, Bombay ('The Tribunal' for short) made on the applications presented by Respondent No. 1 in each of the petitions under S. 33-A of the Industrial Disputes Act, 1947 ('The Act' for short).
2. The facts of the case, in brief, are as follows : A settlement was arrived at on 19th October, 1966, between the management of the Canara Bank and their workmen represented by All India Bank Employees Federation over various issues. One of the clauses of the settlement was that a workman would be entitled to special allowance if he was requires to perform duties in respect of which special allowance was provided for. One of the duties in respect of which special allowance was permitted was for functioning as Special Assistants. According to the terms of the agreement, inter-alia the duties of Special Assistants were to pass independently cash, Clearing and Transfer Cheques, Vouchers etc., upto and including Rs. 5,000/- or any higher limit prescribed by the Bank in its own discretion. On 11th June, 1980, the Management after having discussion with the representatives of the Canara Bank Employees' Union, decided to raise the limit upto which a Special Assistant was required to pass cheques, drafts etc., to Rs. 15,000/-. The above decision was enumerated in Memo. No. 227/80 dated 14th June, 1980. It was also issued in the form of a Circular on 23rd December, 1980 (Annexure-G). After the above Circular was issued, the Canara Bank Workers' Union filed write Petition No. 4607 of 1981 challenging its validity before this Court. The Write Petition failed. Thereafter, an Industrial Dispute was raised as to the justification of raising the limit for passing cheques independently by special Assistants upto Rs. 15,000/-. The dispute was referred for industrial adjudication to the Central Government Industrial Tribunal, Bombay, by an order made by the Central Government dated 12th March, 1982.
In the meanwhile, Respondent No. 1 was posted as Special Assistant by orders dated 11th February, 1982 to Arundalpet, Vijayawade Branch in A.P. The special allowance payable at that point of time was Rs. 83/- per month. The first respondent refused to pass cheques and drafts above the limit of Rs. 5,000/- on the ground that the raising of the limit was unlawful. On 9th August, 1982, a memo was issued to the first Respondent that if he were to refuse to pass cheques and drafts upto Rs. 15,000/- he would not be entitled to the special allowance payable for performing the duties of Special Assistant. The first Respondent, however, refused to pass the cheques and drafts above the limit of Rs. 5,000/- Consequently the Petitioner stopped paying the special allowance to the first respondent. Similarly Respondent No. 1 in the second Write Petition who was posted as Special Assistant to Hubli Branch in this State also refused to pass cheques and drafts beyond the limit of Rs. 5,000/-. The Petitioner also stopped the payment of special allowance to her. There were also five other Special Assistants who had similarly refused to pass cheques and drafts beyond the limit of Rs. 5,000/-. All of them filed complaints under S. 33-A of the Act before the Tribunal complaining that during the pendency of the dispute the Petitioner had altered the conditions of service which was applicable to them immediately before the date of reference.
3. The Tribunal by its award dated 1st March, 1984 made on the reference, held that the petitioner-Management was justified in raising the limit for passing cheques independently by Special Assistants upto Rs. 15,000/- and it did not amount to any alteration of condition of service. However, by a subsequent award made on 27th March, 1984, on the complaints the Tribunal held that the petitioner had contravened S. 33(1)(a) of the Act, in respect of two of the seven complainants before it, who are Respondent No. 1 in each of the Petitions but in respect of five other complainants there was no such violation as they were members of the Union in consultation with whom the Management had raised the limit from Rs. 5,000/- to Rs. 15,000/-. Further, in respect of two persons who are Respondent No. 1 in each of the petitions, the Tribunal held that in view of the award made in the reference on 1st March, 1984, the Petitioner should pay arrears of special allowance form the date of stoppage till the end of February, l984. Aggrieved by this award, the Petitioner-Bank has presented this petition.
4. Before going to the merits of the case, it is necessary to consider a preliminary objection raised on behalf of the first Respondent in the first Petition to the effect that this Court had no jurisdiction to entertain the Writ Petition as the impugned award was made by the Industrial Tribunal at Bombay and the first Respondent is an employee of the Bank serving in the state of Andhra Pradesh. In support of the above preliminary objection, Learned Counsel relied on the judgment of the Allahabad High Court in Punjab Sugar Mills v. State of U.P. [1960-I L.L.J. 756] and of the Kerala High Court in M. G. George v. Assistant Director, Subsidiary Intelligence Bureau : AIR1977Ker4 . The contention, in my opinion, is untenable. While Clause (1) of Art. 226 of the Constitution provides that every High Court shall have power of issue the writ or orders to any person or authority or Government throughout the territories in relation to which it exercises jurisdiction, Clause (2) provides that the power to issue directions conferred under Clause (1) may also be exercised by any High Court exercising jurisdiction in relation to the territories within which the cause of action, wholly or in part, arises for the exercise of such power notwithstanding that the seat of such Government of authority is not within those territories. On the facts of the case there is no dispute that the Management of the Canara Bank, Head Office, Bangalore-2, is the opponent in each of the complaints presented by the first respondent and others. The notice of the complaints was served on the Management of the Canara Bank at Bangalore. The award is made against the Canara Bank, Head Office, Bangalore and it is sent to the petitioner at Bangalore. The Circular issued by the Bank which was the subject matter of the complaint was issued at the instance of the Head Office of the Canara Bank at Bangalore and the special allowance was withheld under the instructions of the Head Office and the amount directed to be paid under the impugned award is payable only by or under the order of the Head Office of the Canara Bank at Bangalore. The first Respondent in the second Petition who is the complainant before the second Respondent is serving at Hubli within the State. These facts establish that, if not wholly, a substantial part of the cause of action arose in this State and therefore this Court has the Jurisdiction to entertain the Writ Petition. The Judgment of the Allahabad High Court on which the Learned Council relied was one rendered prior to the introduction of Clause (2) to Art. 226, hence inapposite and in the case decided by the Kerala High Court, no part of the cause of action had arisen in the State of Kerala. Therefore, the objection raised by the first Respondent in the first Petition is untenable (See also : L. V. Veeri Chettiar v. sales Tax Officer, Bombay) : AIR1971Mad155 .
5. Coming to the merits of the case, the plea of the petitioner is as follows : In terms of the settlement itself, it was provided that the Bank could at its discretion increase the limit above Rs. 5,000/-. It is in terms of the condition of service incorporated in the settlement itself, the Petitioner-Bank issued the memo date 14th June, 1980 increasing the limit to Rs. 15,000/-. The same was also incorporated on the Circular dated 23rd December, 1980. The discussion which the Bank had on 11th June, 1980 with the representatives of the Canara Bank Employees' Union was only with the object of taking them into confidence about the increase. The mere fact that the Bank had discussed the matter with the representative of the Canara Bank Employees' Union did not mean that the Bank could not increase the limit to Rs. 15,000/- without the consent of the workmen. Therefore, there was no alteration of condition of service at all. By the mere fact that the employees choose to raise a dispute and the Government made the reference on 12th March, 1982 did not mean that there had been alteration of condition of service. In fact, in the final award made by the same Tribunal on 1st March, 1984, it held that there was no alteration of condition of service. Strangely, the Tribunal which held that in respect of five persons there was no alteration of condition of service albeit they were members of the Union with whom the Bank had discussed before issuing the memo, raising the limit, in respect of two workmen only it held that there had been alteration of condition of service which was contradictory. Therefore the finding of the Tribunal that there was violation of S. 33(1)(a) of the Act by way of altering the condition of service during the pendency of a dispute was perverse.
6. Alternatively, even if violation of S. 33 of the act was established, the only jurisdiction available to the Tribunal was to treat the matter as reference and decide the main dispute itself and could not have made an award as had been done in the impugned award have held earlier in the main dispute that there was no alteration of condition of service.
7. As against the plea of the petitioner, Counsel for Respondent No. 1 submitted as follows : In terms of the settlement, the Management had the discretion to fix at Rs. 5,000/- or more, the limit up to which Special Assistants were required to pass cheques or drafts; but once it was fixed at Rs. 5,000/- there was no authority for the Bank to increase the limit. The decision to increase the limit, therefore, clearly amounts to alteration of condition of service. As such alteration as made during the pendency of the dispute, there was violation of S. 33(1)(a) of the Act. The Petitioner had discussed the matter only with the Canara Bank Employees' Union of which first respondent in each of the Petitioners were not members and therefore even on the basis the said Union had agreed for the increase of the limit, it was not binding on the respondents who were members of a separate union, namely, Canara Bank Staff Union which had directed them not to pass cheques or drafts above the limit of Rs. 5,000/-. Once the violation was established, the Tribunal was right in making the award.
8. Now the first question for consideration is : whether there has been a violation of S. 33(1)(a) of the Act According to the said provision, when a proceeding concerning an industrial dispute is pending before any authorities, the Management of the industry concerned is prohibited from altering the conditions of service in regard to any of the matters connected with the dispute applicable to the workman concerned immediately before the commencement of the proceedings without the express permission of the authority before whom the proceeding is pending. Therefore, there can be no doubt that if the raising of the limit upto which a Special Assistant is required to pass the cheques and drafts etc., amounted to variation of condition of service there would be a clear violation of S. 33(1)(a) of the Act and consequently a complaint presented under S. 33-A of the Act for violation of S. 33(1)(a) would be maintainable and further the Petitioner, in addition to the liability for being punished for an offence under S. 29 of the Act, would also be liable to pay the amounts withheld. (See : Hindustan Lever Ltd. v. R. M. Ray) : (1973)ILLJ427SC .
9. In order to appreciate the point, it is necessary to set out the relevant parts of the Settlement dated 19th October, 1966. Clauses 5.8 and 5.9 of the settlement reads :
'5.8 A workman will be entitled to a special allowance if he is required to perform duty/duties and/or undertake the responsibilities listed against the category, irrespective of his designation/nomenclature or any general authority vested in him.
5.9 A workman will be entitled to a special allowance only so long as he is in charge of such work or the performance of such duties which attract such allowance. Whether a workman can be asked to cease to do such work or discharge such duties and consequently cease to draw such allowance, will depend upto the terms of his employment. For instance a workman who is employed permanently as Head Clerk or Stenographer cannot be deprived of his Special Allowance by asking him to work as an ordinary clerk or asking him not to work as a Head Clerk or Stenographer. If, however, a recipient of a special allowance wants to give up the work or duties which entitle him to the special allowance, he shall if his request is granted, cease to draw the special allowance'.
The relevant portion prescribing the duties of Special assistants reads :
'(xix) SPECIAL ASSISTANTS :
Their duties involve :
(1) Passing independently Cash, Clearing and Transfer cheques, voucher, etc. (whether credits or debits) upto and including Rs. 5,000/- (or any higher limit fixed by the bank in its own discretion). Passing will include verification of signatures and scrutiny as to the correctness of endorsements on and other particulars of such instalments'.
Under Cls. 5.8 and 5.9 a workman would be entitled to special allowance if he performs the duties for which special allowance is prescribed. The workman is also at liberty to give up the work in which event he ceases to draw the special allowance. As regards the duties of Special Assistants also, the wording of the clause is clear and unambiguous. The limit upto which a Special Assistant would be required to pass cheques, drafts, etc., is Rs. 5,000/- or any other higher limit fixed by the bank in its discretion. If the words 'or any higher limit fixed by the Bank in its own discretion' were not incorporated in the relevant clause in the agreement there would have been force in the stand taken by the respondent-workman that the raising of the limit amounted to alteration of condition of service and the giving prescribed notice of change under S. 9-A of the Act would have been obligatory and in any event the raising of the limit during the pendency of the dispute would have amounted to alteration of condition of service.
10. In view of the words 'or any higher limit fixed by the bank in its own discretion' the management had the descretion to raise the limit and the same was raised to Rs. 15,000/- by issuing memo No. 227/80 on 14th June, 1980. It has been explained in the petition that such raising was considered necessary in view of the fall of rupee value. This was done long before the raising of the dispute on 12th March, 1982. It is true that the petitioner had a discussion with the representatives of the Canara Bank Employees' Union on 11th June, 1980 before raising the limit. As pointed out by the Learned Counsel for the petitioner, in my opinion rightly, that the Bank need not have even discussed with the representatives of the recognised union before raising the limit. As explained by the Learned Counsel for the Petitioner, they did so with a view to have cordial relationship with the employees by taking term into confidence before raising the limit and that the representatives of the employees were reasonable and did not raise any objections for such raising. This being the position, I fail to appreciate how it could be held that there had been any alteration of condition of service at all. Learned Counsel for the workmen, however, maintained that according to the above clause the discretion given to the Bank was to fix the limit in the first instance and therefore it was open for the Bank either to have fixed Rs. 5,000/- or more in the first instance and once it was fixed, the clause did not authorise the Bank to raise the limit in its discretion. The interpretation of the clause by the Learned Counsel for the workmen is patently untenable. The clause itself fixed the limit at Rs. 5,000/- and enabled the Bank to raise to any higher limit at its discretion as and when it became necessary.
11. In fact, the same Tribunal, which has made the impugned award has made an award on the reference. In which the plea of the workman that there has been variation of the condition of service has been rejected. The issues framed and the finding recorded by the Tribunal in the award made in the main dispute of 1st March, 1984 reads :
--------------------------------------------------------------------ISSUES FINDINGS--------------------------------------------------------------------1. Whether the agreement reached between the Canara Bank on one side and the Canara Bank Employees' Union, stated to be a recognised Union is fair and reasonable YES 2. If Yes, where the said agreement As agreement only on members is binding on all the employees of the Canara Bank Employees' Union. 3. If not whether the action of the management in raising the limit to NO Rs. 15,000 in passing of cheques independently by Special Assistant amounts to a change in service condition 4. If yes whether the procedure Not necessary required under S. 9-A of the Act has been validly effected 5. If not whether the said change YES has been validly effected 6. Whether once the Bank having YES used its discretion and having fixed the limit whether they can again enlarge the said limit 7. Where the action of the Bank YES is proper and legal ---------------------------------------------------------------------
The relevant part of the award in which it gave reasons in support of its findings reads :
'17. 'Or any higher limit fixed by the Bank in its discretion' must have been added to render the limit flexible and to avoid rigidity in this regard. It cannot mean that Bank which adopted Rs. 5,000/- is disentitled to fix the limit subsequently but a plain reading of the clause conferred the right or the discretion on the Bank governed by the Bipartite Settlement to increase the limit if it so found to be necessary
xxx xxx xxx22. It is not that it is only Canara Bank which has increased the limit but the record speaks that there are other Banks such as Syndicate Bank and Allahabad bank who have also moved in these directions. Having regard to all these facts of the case therefore and having regard to the fact that the right or discretion is even accepted by one of the hotly contested Union and other circumstance already discussed. I am convinced that the action of the Bank in raising the limit to Rs. 15,000/- is perfectly legitimate and having regard to the inflation and the resultant fall in the price of rupee value the same is also proper and justified.'
In view of the findings given by the Tribunal in the award everyone of the points raised by the two respondents in the complaint presented by them under S. 33-A of the Act being the same as those which arose for consideration in the dispute ought to have been negatived. It is amazing that the Tribunal which held in the main award that.
(1) The raising of the limit for passing cheques by Special Assistants from Rs. 5,000/- to Rs. 15,000/- was in terms of the agreement and did not amount to variation of conditions of service.
(2) As the raise did not amount to variation of condition of service, notice under S. 9-A of the Act was not necessary.
(3) Even assuming that the management had fixed the limit in the first instance at Rs. 5,000/- it had under the agreement the right to raise the limit to Rs. 15,000/-
(4) The decision of the management was valid, legal and proper.
Proceeded to hold in the impugned award made subsequently that raising of the limit of passing cheques by Special Assistants from Rs. 5,000/- to 15,000/- amounted to variation of condition of service and that too only in respect of the two Respondents only and in respect of five others it did not, because they were members of Canara Bank Employees' Union.
12. It is difficult to appreciate how the Tribunal having held in the main award that what the Bank did, did not amount to variation of condition of service at all could still say that what it did amount to violation of S. 33(1)(a) in respect of two persons. The reason given by the Tribunal that the two Respondents were not members of Canara Bank Employees' Union and that made the difference is untenable.
13. In the result, I hold that the finding recorded by the Tribunal that there has been violation of S. 33(1)(a) of the Act by the petitioner-Bank is untenable and consequently the award is liable to beset aside.
14. The alternative contention urged by the Learned counsel for the petitioner was that even assuming that there had been a violation of S. 33(1)(a) of the Act, all that S. 33-A of the Act authorises the Tribunal was to treat the claim which has given rise to complaint as a reference and to dispose it of as reference. In support of this submission. Learned Counsel relied on the judgment of the Supreme Court in Punjab National Bank v. A.I.P.N.B.E. Federation (A.I.R.) 1950 S.C. 160 and in M/s. Punjab Beverages Pvt. Ltd. Chandigarh v. Suresh Chand and another [1978-II L.L.J. 1]. He further submitted that when the dispute which was the subject matter of reference was identical with the claim which gave rise to the complaint under S. 33-A of the Act, the Tribunal could not make contradictory awards as had been done in the case.
15. It is unnecessary to consider this question for the reason I have come to the conclusion that the finding recorded by the Tribunal in the impugned award that there had been violation of S. 33(1)(a) of the Act by the petitioner is untenable.
16. In the result, I make the following order :
(i) the Writ Petitions are allowed.
(ii) The impugned award made by the Central Government Industrial Tribunal, No. 2, Bombay (Annexure A) is set aside.
(ii) No costs.