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The Andhra Bank Limited, Represented by Its General Manager Vs. Industrial Tribunal (Central) and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in(1976)ILLJ521AP
AppellantThe Andhra Bank Limited, Represented by Its General Manager
Respondentindustrial Tribunal (Central) and ors.
Excerpt:
.....supreme court continued to advert to the other argument submitted before it, viz. 18. in the end, the writ petition is allowed and it is declared that the reference is bad and the industrial tribunal has no jurisdiction to decide the dispute......the three respondents respectively are the industrial tribunal (central), hyderabad, the andhra bank employees' association and the andhra bank employees' union. the writ petition is filed to quash the order passed by the industrial tribunal in industrial dispute no. 18 of 1971 on a preliminary objection raised by the petitioner-bank to the effect that the reference is incompetent and that no industrial dispute exists between grade iii officers and the management of the bank. the reference to the industrial tribunal was asked by respondents 2 and 3 on the ground that an industrial dispute exists between the workers and the management of the bank with regard to fitment of grade iii officers of the bank who are promoted from the clerical staff, i.e., with regard to fixation of pay in.....
Judgment:

Ramachandra Raju, J.

1. The Andhra Bank Limited, Hyderabad, is the petitioner. The three respondents respectively are the Industrial Tribunal (Central), Hyderabad, the Andhra Bank Employees' Association and the Andhra Bank Employees' Union. The writ petition is filed to quash the order passed by the Industrial Tribunal In Industrial Dispute No. 18 of 1971 on a preliminary objection raised by the petitioner-Bank to the effect that the reference is incompetent and that no industrial dispute exists between Grade III Officers and the management of the Bank. The reference to the Industrial Tribunal was asked by respondents 2 and 3 on the ground that an industrial dispute exists between the workers and the management of the Bank with regard to fitment of Grade III Officers of the Bank who are promoted from the clerical staff, i.e., with regard to fixation of pay in the time pay scale of Grade III Officers on the clerical staff being promoted to Grade III Officers category.

2. The reference made by the Government is as follows:

Whether the policy adopted by the management of the Andhra Bank regarding the fitment of clerical employees on promotion to Grade III Officers is uniform in respect of all employees of the Bank and whether it is fair and justified If not, to what relief the employees affected are entitled

3. We are not concerned here with the merits of the dispute raised. The preliminary objection raised by the Bank is that the dispute in question is not an 'industrial dispute ' because the dispute concerns with the emoluments of Grade III Officers who are not ' workmen.'

4. If the dispute is not an industrial dispute as contended by the Bank there cannot he any reference to the Industrial Tribunal about it as that would be outside the scope of the Industrial Disputes Act.

5. The expression ' industrial dispute ' is denned under Section 2(k) of the industrial Disputes Act. The term 'workman' is defined under Section 2(s) of that Act. It is convenient to extract here, the two definitions so far as they are relevant for our purpose.

Section 2(k), 'industrial dispute' means any dispute or difference between employers and employers, or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person.

Section 2(s), ' workmen ' means... but does not include any such person:

(i) ...

(ii) ...

(iii) ...

(iv) who, being employed in a supervisory capacity, draws wages exceeding five hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature.

6. A reading of the above definition of the expression ' industrial dispute ' shows that so far as employees are concerned a dispute can only be between workmen within the meaning of the term ' workman ' as defined in Section 2(s) of the Industrial Disputes Act and an employer and it cannot be between an employer and those who are not workmen. Though the dispute should have a connection with the employment or non-employment or the terms of employment or with the conditions of labour they need not be connected with workmen only but they can be connected with any person. What is meant by the expression ' any person ' in that definition is the subject-matter of judicial interpretation in some decided cases.

7. In the decision Workmen of Dimakuchi Tea Estate v. Management of Dimankuchi Tea Estate : (1958)ILLJ500SC , the Supreme Court was considering whether the workmen of a Tea Estate can raise an industrial dispute regarding the termination of service of a doctor employee of the Tea Estate. The Supreme Court said that though a dispute concerning a person who is not a workman may be an industrial dispute within the meaning of Section 2(k), having regard to the scheme and objects of the Act and its other provisions, the expression ' any person ' in Section 2(k) of the Act must be read subject to such limitations and qualifications as arises from the context; the two crucial limitations being (1) the dispute must be a real dispute between the parties to the dispute so as to be capable of settlement or adjudication by one party to the dispute giving necessary relief to the other and (2) the person regarding whom the dispute is raised must be one in whose employment, non-employment, terms of employment, or conditions of labour, as the case may be, the parties to the dispute have a direct or substantial interest. The Supreme Court said that the person concerned in the dispute being not a workman as he belonged to the medical or technical staff, a different category altogether from workmen who raised the dispute, they have no direct or substantial interest in his employment or non-employment and, therefore, it cannot be said that, even assuming that he was a member of the same Trade Union, the dispute regarding his termination of service was an industrial dispute within the meaning of Section 2(k) of the Act.

8. The same principle was reiterated by the Supreme Court in the decisions, Workmen of Dahingeapar Tea Estate v. Dahingeapar Tea Estate : (1958)IILLJ498SC and Kays Constructions Co. v. its Workmen 1958-II L.L.J. 660 : A.I.R. 1959 Supreme Court, p. 208.

9. In the decision Standard-Vacuum Refining Co. v. Their Workmen : (1960)IILLJ238SC , the Supreme Court was considering a case where regular workmen of a company raised a dispute relating to contract labour. The Supreme Court held that it was an industrial dispute. The dispute is that toe contractor was paying much less to the workmen, there was no security of service to the workers who in effect were doing the work of the company and they enjoyed no other benefits and amenities given to the regular workers though their work was also of a permanent nature. The workman who raised the dispute wanted that the contract system should be abolished and the workers of the contractor should be considered as workers of the company. It was contended by the company that there was no industrial dispute and that it was not open to the workmen to raise a dispute with respect to the workers of the contractor. The Supreme Court said that the regular workers of the company had a community of interest with the workers of the contractor who were in effect working for the same employer, they had also a substantial interest in the subject-matter of the dispute in the sense that the class to which they belonged (namely, workmen) was substantially (affected) thereby and, therefore, all the ingredients of Section 2(k) were thus present is the case and the dispute between the parties was an industrial dispute and the reference was competent,

10. It is an admitted fact that Grade III officers of the Bank draw a minimum salary exceeding Rs. 500 per month and the nature of the duties of those officers is also supervisory in nature. Therefore, it is also conceded by respondents 2 and 3 that a Grade III officer or the Bank in view of the salary he draws and the supervisory character of his duties is not a warkmen within the definition of Section 2(s) of the Industrial Disputes Act. But nontheless it is the case of respondents 2 and 3 that the dispute in question is an industrial dispute which can be referred to an industrial Tribunal as the clerical staff of the bank at whose instance the dispute was raised are vitally interested in the dispute and, therefore, the reference made to the industrial Tribunal is competent. The industrial Tribunal, Hyderabad, agreed with this contention of respondents 2 and 3 and on the preliminary objection gave a finding that the objection raised by the Bank as to the competency of the reference is unsustainable and accordingly rejected the objection raised by it. it is that order of the Industrial Tribunal rejecting the preliminary objection raised by the Bank that is the subject-matter of this writ petition.

11. An industrial dispute can be raised either by the employees of an industry or by any Association or Union representing the employees provided toe employees come within the definition of ' workman ' as denned in Section 2(s) of the industrial Disputes Act. In the present case, the 2nd respondent-Association and the 3rd respondent-Union raised the dispute on behalf of the clerical staff of the Bank, who are workmen, their wages being less than Rs. 500 per month. But the dispute raised is not with regard to the terms of employment of the clerical staff, but with regard to the terms of employment of the members of Grade III officer category of the Bank, which is the next higher grade for their promotion. The competency of the 1st respondent-Industrial Tribunal to go into the dispute raised has two aspects, viz., (1) whether the clerical staff of the Bank can raise that dispute because the dispute does not relate to their employment or the conditions of their employment as clerk and (2) whether the Industrial Tribunal is competent under the industrial Disputes Act to decide the dispute relating to the employment or conditions of service of Grade III officers of the Bank who draw a minimum salary exceeding Rs. 500 per month and, therefore, not workmen as per the definition of the term ' workmen.' For the Industrial Tribunal to get jurisdiction to decide the dispute both the questions must be answered in the affirmative.

12. We get some guidance on both these questions from the Supreme Court Employees' Association v. Reserve Bank of decision All India Reserve Bank Em-India : 1985CriLJ1898 . In that case, the pay structure of several classes of employees of the Reserve Bank of India was the subject-matter of the dispute before the National Tribunal constituted to decide it. There, the pay structure of Class II employees in the time scale exceeds at a local pay centre Rs. 500 after three years' of service and every other incumbent at the end of five years' of service. Most of the employees in that class had entered it by promotion and even at their entry were drawing wages in excess of Rs. 500. That was the position when the dispute was referred to the National Tribunal. It is under these circumstances, the Reserve Bank of India contended that a dispute could only be raised before the National Tribunal provided a workman continued to be a workman as denned. The relationship of employer and workmen must exist (a) at the time of the dispute, (b) at the time of the award and (c) during pendency of the award, otherwise the reference and the consequent award would be without jurisdiction. The contention of the Reserve Bank was accepted by the National Tribunal. Against the decision of the National Tribunal, the matter was taken to the Supreme Court by the employees of the Reserve Bank. What happened there was after the dispute was referred to the National Tribunal Class II employees reached and exceeded the pay of Rs. 500 per month in the time scale by afflux of time. The Supreme Court said, that as that position obviously did not exist at the time of reference as at that time the scale was such that some at least of Class II employees were drawing wages below its. 500 per month, the reference was a valid reference. With regard to the contention of the Reserve Bank that the National Tribunal had no jurisdiction to make an award to provide a scale of payment which would make the workmen cease to be workmen in course of time, which was agreed to by the National Tribunal, the Supreme Court said that the National Tribunal, was not justified in holding that if at a future time the incumbent would draw wage in the time scale in excess of Rs. 500 the Central Government must be taken to have no jurisdiction to make a reference in respect of him and the National Tribunal to be ousted of the jurisdiction to decide the dispute if referred. The Supreme Court said that supervisory staff drawing less than Rs. 500 per month cannot be debarred from claiming that they should draw Rs. 500 presently or at some future stage in their service. After saying that, most significantly the Supreme Court then added that they can only be deprived of the benefits if they are non-workmen at the time they seek the protection of the Industrial Disputes Act.

13. After holding like that, the Supreme Court continued to advert to the other argument submitted before it, viz., whether the workmen proper belonging to Class II (i.e., when were drawing less than Rs. 500 per month in Class II) or Class III (who also draw less than Rs. 500 per month) in the reference are entitled to raise the dispute in respect of employees in Class II who, by reason of Clause (iv) test in the definition of ' workmen ', i.e., employees drawing more than Rs. 500 per month and having supervisory nature of duties, have ceased to be workmen. The Supreme Court by also making reference to its earlier decisions mentioned above said that if the dispute is one in which the workmen in question are vitally interested, the workmen may be able to raise an industrial dispute. The Supreme Court observed that workmen can, for example, raise a dispute that a class of employees not within the definition of ' workmen' should be recruited by promotion from workmen. When they do so, the workmen raise a dispute about the terms of their own employment though incidentally the terms of employment of those who are not workmen is involved. But the workmen cannot take up a dispute in respect of a class of employees who are not workmen and in whose terms of employment those workmen have no direct interest of their own. What direct interest suffices is a question of fact but it must be a real and positive interest and not faciful or remote. By making those observations the Supreme Court said that the National Tribunal was in error in not considering claims of Class II employees whether at the instance of members drawing less than Rs. 500 or at the instance of those lower down in the scale of employment.

14. All this the Supreme Court said with regard to a dispute which relates to employees who were workmen at the time the reference was made and ceased to be workmen thereafter by reason of the increase in their emoluments in time scale of pay by afflux of tune or otherwise at the time of the award. It follows from what the Supreme Court said that even workmen, though they may have a direct interest in the dispute relating to a class of employees, the post relating to those employees being their next promotion post, cannot raise a dispute if the employees of that class are not workmen even at the inception of their appointment to that class, their employment being in a supervisory capacity drawing wages exceeding Rs. 500 per month. That is what is meant when the Supreme Court said, as mentioned above, that Class II employees of the Reserve Bank can only be deprived of the benefits if they are non-workmen at the time they seek the protection of the Industrial Disputes Act. Not only that, what had happened in that case was that after the dispute was referred to the National. Tribunal, the Reserve Bank revised the salaries of its employees in such a way that the emoluments, equal to wages, of Class II employees exceeded Rs. 500 per month even to start with. That was done obviously, even as admitted by the counsel of the Reserve Bank before the Supreme Court, to exclude altogether Class II employees from the category of workmen and to render the Industrial Disputes Act inapplicable to them. With regard to this ultimately the Supreme Court said that they would have been required to consider the scale applicable to those in Class II but; for the tact that the Reserve Bank has fixed scales to start within excess of Rs. 500 per month. The Supreme Court continued that in view of the fact that all Class II employees now received at the start wages in excess of Rs. 500 per month, there is really no issue left concerning them, once it is said that they are working in a supervisory capacity.

15. From what was said by the Supreme Court as mentioned above, it is clear that any dispute with regard to the terms of employment, etc., of employees drawing wages in excess of Rs. 500 per months and whose duties are supervisory in character and, therefore, not workmen cannot be an industrial dispute and it can neither be raised by them who are not workmen nor by other employees, who are workmen, on the ground that it is their next promotion cadre and, therefore, they are directly and vitally interested in the dispute.

16. Therefore, in the present case with regard to the first question the answer can be in the affirmative, viz., that the clerical staff of the Andhra, Bank, on whose behalf the 2nd respondent-Association and the 3rd respondent-Union raised the dispute, are competent to raise it though the dispute does not relate to their wages but it relates to the wages of Grade III Officers, on the ground that as their next promotion post is the post of Grade III Officers, they are directly interested in the matter. But with regard to the second question it is clear that the dispute raised by them is outside the scope of the Industrial Disputes Act because it relates to wages of employees, viz., Grade III Officers who in that category draw wages even from the inception more than Rs. 500 per month and whose duties are supervisory in nature and, therefore, they are not workmen even to begin with in that category.

17. In the decision of Workmen of Greaves Cotton & Allied Companies v. Greaves Cotton & Co., Ltd. and Ors. : (1971)IILLJ479SC , which was referred by the Industrial Tribunal in its order, the above decision of the Supreme Court was referred to and followed and the same principle were reiterated, It did not lay down anything more from which to draw support for the contention of respondents 2 and 3 that even though from the inception Grade III officers are not workmen still the dispute raised can be an industrial dispute. There also the Supreme Court only said that once an Industrial Tribunal is vested with the jurisdiction to entertain the industrial dispute which has been validly referred, it does not cease to continue that jurisdiction merely because the claim made goes beyond the wages which takes workmen out of that category and makes them non-workmen after the reference was made. What the Supreme Court said in this decision is that what has to be seen is whether, on the date of the reference there was any dispute in respect of the workmen which can be referred to the Tribunal under the Industrial Disputes Act. The Tribunal has jurisdiction to consider revision of wage scale, dearness allowance and other emoluments so long as there is a category of workmen who are employed in the supervisory capacity and drawing less than Rs. 500 per month. Even where such workmen in a supervisory capacity ask for a pay structure which takes them beyond Rs. 500, that by itself does not preclude the Tribunal from determining what is the proper wage-structure for that class or category of workmen. Where, however, there are none falling within the definition of ' workman ' because all of them receive wages in excess of Rs. 500 either during the pendency of the adjudication or at the time of adjudication, the Tribunal cannot be called upon to prescribe wage structure for non-existing workmen nor will it have jurisdiction to do so, and in this sense the dispute must be deemed to have lapsed. Thus, this decision also supports the contention of the Andhra Bank rather than goes against it. The Industrial Tribunal misread this judgment of the Supreme Court in coming to the conclusion, by following it, that the reference to it, by the Government is competently made and the dispute referred arises under the Industrial Disputes Act. As I have already said above there are two aspects of the matter, viz., (1) Whether the clerical staff of the Andhra Bank are competent to raise the dispute and (2) whether the dispute raised is an industrial dispute. The Tribunal by coming to the conclusion that the clerical staff of the Bank could raise the dispute, missed the need for the second requirement for a valid reference, viz., that the dispute should also be an industrial dispute. As already mentioned above, the dispute raised regarding the fitment to Grade III officers whose duties are supervisory in character and who draw towards their wages more than Rs. 500 per month even from the start in that category cannot be an industrial dispute because it relates to non-workmen out and out and, therefore, outside the scope of the Industrial Disputes Act.

18. In the end, the writ petition is allowed and it is declared that the reference is bad and the Industrial Tribunal has no jurisdiction to decide the dispute. In the circumstances of the case, I direct the parties to bear their respective costs in the writ petition.


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