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The Management of Indian Bank Reptd. by Its General Manager Vs. the Presiding Officer, Industrial Tribunal (Central Government) High Court Premises and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtChennai High Court
Decided On
Reported in(1984)2MLJ390
AppellantThe Management of Indian Bank Reptd. by Its General Manager
RespondentThe Presiding Officer, Industrial Tribunal (Central Government) High Court Premises and anr.
Cases ReferredAssociation v. Andhra Bank
Excerpt:
- .....in which workmen are themselves vitally interested, the workmen may be able to raise an industrial dispute. workmen can, for example, raise a dispute that a class of employees not within the definition of workman 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 workmen cannot take up a dispute in respect of a class of employees who are not workmen and in those terms of employment those workmen have no direct interest of their own. what direct interest will suffice is a question of fact, but it must be a real and positive interest and not fanciful or remote. it follows therefore that the national tribunal was in error.....
Judgment:

K.B.N. Singh, C.J.

1. This appeal arises out of the order passed in W.P. 6889 of 1975 filed by the Management of the Indian Bank (hereinafter referred to as the Bank), by which the learned ' Judge (Koshal, 3.), dismissed the writ petition, rejecting the preliminary objection raised on behalf of the Bank that the reference made by the Government of India, in the Ministry of Labour, was not competent, as the dispute was not an industrial dispute within the meaning of the definition in Section 2(k) of the Industrial Disputes Act, inasmuch as the persons whose cause the Employees' Union (hereinafter referred to as the Union) espoused, were not workmen within the meaning of the Act, but belonged to a category of supervisory staff.

2. The facts leading to the reference may shortly be stated. It is an admitted position in this case that there was an agreement between the Bank and the Union, that the Bank should fill a fixed percentage of posts of officers from amongst the clerical cadre staff of the Bank. It is also not disputed that, when officers are transferred from Branches in Southern India and posted to branches in Northern India, they are given two additional increments. The grievance of the Union is that, when clerks were posted to branches in Northern India on promotion, they were denied the benefit of the two additional increments, though on promotion they belonged to the same category as other officers to whom the increments were paid on being posted to branches in Northern India. The Union raised an industrial dispute, and, after the failure of the usual conciliation proceedings, the Central Government referred the dispute between the Management and the employees, which reads as follows:

Whether the action of the Management of the Indian Bank, Madras, in denying the grant of two additional increments to staff promoted as officers and posted to the branches of the Bank in North India is justified? If not, to what relief are they entitled?

3. The preliminary objection, in reply to the show-cause, raised on behalf of the Bank was that the dispute raised regarding the denial of two additional increments to members of the staff promoted as officers and posted to branches of the Bank in Northern India was really a dispute regarding non-workmen, that the dispute was not in regard to workmen within the meaning of the term in Section 2(e) of the Act, and that therefore, the reference made by the Government of India under Section 10 of the Act, was not competent, and that the Tribunal had no jurisdiction to decide the dispute.

4. The second point urged regarding the competency of the reference was that the promotion of members of the staff of the Bank to the cadre of officers was covered by the terms of the agreement between the Union and the Bank, and having regard to the procedure set out in the promotion policy agreement, the Union was estopped from claiming anything which was outside the scope of the agreement. It may be stated here and now that the second point urged relates to the merit of the reference and has nothing to do with the competency of the reference.

5. In the counter affidavit filed on behalf of the Union, it was contended that the dispute related to members of the staff who were admittedly workmen and were promoted as Officers and posted to branches in North India, that under Section 2(k) of the Act, the dispute need not necessarily relate only to 'workmen', but it could relate to any person in whom they have a direct interest or community of interest.

6. The question which therefore falls for consideration in this appeal depends upon the interpretation of the provisions of Section 2(k) of the Act, which reads as follows:

2(k). 'Industrial dispute' means any dispute or difference between employers and employees, 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.

7. Mr. Dolia, learned Counsel appearing on behalf of the Bank, has submitted that the Act does not confer any benefit on employees, who are not workmen, that as industrial dispute in regard to non-workmen could be raised by persons, who have already been promoted from the category of clerical staff, and that the learned Judge has failed to see that there existed no community of interest between such staff and officers within the framework and under the scheme of the Act. In other words, learned Counsel contended that the community of interest must be under the scheme of the Act. He has referred to the provisions of Sections 3, 9-A, 18(3)(a), 19(6), 22, 23, Chapter V-A, V-B, Sections 33(2)(b), 33-C, 33-A and 36 of the Act, to show that the Act conferred no benefit on non-workmen. The advantage of the Works Committee under Section 3, consisting of the representatives of the employers and workmen, is available only to workmen. The protection given under Section 9-A is available only to workmen, whose conditions of service cannot be changed without notice to the workmen likely to be affected. Section 18(3)(a) deals with a settlement arrived at in the course of conciliation proceedings, or an arbitration award, or an award of a Labour Court or Tribunal, which shall be binding on all the parties to the industrial dispute. The right of terminating such a settlement or award is available under Section 19(6) to a workman, and it is not available to an officer, who, in the very nature of things, is not a party to such proceedings. The provision under Section 22 against going on strike in a public utility service during the pendency of conciliation or other proceedings relates only to workmen and similarly the provision in Section 23 against going on strike in an industrial establishment during the pendency of conciliation or other proceedings applies only to workmen; an officer is not bound by these provisions. The provisions relating to lay-off and retrenchment contained Chapter V-A and special provisions in regard to lay-off and retrenchment contained in Chapter V-3 are also applicable only in regard to workmen and not to officers. The special provisions in relating to change of conditions of service of of workmen during the pendency of conciliation or other proceedings, under Section 33(2)(b), as well as the special provisions in this regard contained in Section 33-A are applicable in the case of workmen and are not applicable to officers. Similarly, the provision in Section 33-C with regard to the recovery of money due from the employee applies only to a workman. So also the provision in Section 36 relating to the facility available to a workman to be represented in a dispute is applicable only to a workman, and, according to learned Counsel, the Union cannot settle a dispute for officers.

8. Learned Counsel has strenuously emphasised the fact that, unless the officers can take advantage of these provisions or are bound by the provisions of the Act, they cannot be said to have any community of interest with the workmen so as to entitle them to raise an industrial dispute on their behalf, even if the expression 'any person' occurring at the end of Section 2(k) of the Act is given an extended meaning so as to include non-workmen also. According to learned Counsel Mr.Dolia, such non-workmen must have a community of interest under the scheme of the Act, and, unless it is so, they cannot be held to come under the definition of 'any person' in Section 2(k) of the Act. There is no substance in this contention of Mr.Dolia, that to me within the meaning of the definition of 'any person' in Section 2(k) of the Act, an officer should have a community of interest under the provisions of the Act with the other workmen.

9. The provisions of the Act relating to settlement of industrial disputes have been made for better relationship between employer and workmen, to avoid victimization of workmen and to prevent strike, lay-off or retrenchment, in national interest. There is no such embargo so fat as officers are concerned. To say that they can have a community of interest with workmen only when the various provisions of the Act apply to them is tantamount to saying that 'any person' occurring at the end of Section 2(k) of the Act should be confined only to workmen. The contention of Mr.Dolia is contrary to the decision of the Supreme Court in Assam Chah Karmachari Sangha v. Dimakuchi Tea Estate, : (1958)ILLJ500SC . In that case the cause of a doctor in the Dimakuchi Tea Estate, who at no stage belonged to the category of workman, was espoused by the Assam Chah Karmachari Sangha, a Union of workmen. The Tribunal and the High Court held that it would not be an industrial dispute within the meaning of Section 2(k) of the Act. Against the order the Union moved the Supreme Court, and the special leave granted by the Supreme Court was

limited to the question whether a dispute in relation to a person, who is not a workman, falls within the scope of the definition of industrial dispute contained in Section 2(k) of the Industrial Disputes Act, 1947.

S.K. Das, J., speaking for the majority, after referring to the various provisions of the Act, some of which have been referred to by Mr.Dolia, observed as fellows (D. 506):

Thus, an examination of the salient provisions of the Act shows that the principal objects of the Act are-

(1) the promotion of measures for securing and preserving amity and good relationship between the employer and workmen;

(2) an investigation and settlement of industrial disputes, between employers and employees, employers and workmen, or workmen and workmen, with a right of representation by a registered trade union or federation of trade unions or association of employers or a federation of associations of employers;

(3) prevention of illegal strikes and lockouts;

(4) relief to workmen in the matter of lay-off and retrenchment; and

(5) collective bargaining-

The Act is primarily meant for regulating the relations of employers and workmen-past, present and future. It draws a distinction between 'workmen' as such and the managerial or supervisory staff, and confirms benefit on the former only.

10. Interpreting the provisions of Section 2(k) in the background of the various provisions of the Act, his Lordship discarded the extreme meaning sought to be given to 'any person' as to include anybody on earth, as also limiting its meaning to 'workmen' alone, and observed as follows:

We think that these two considerations, instead of leading to a strictly grammatical or etymological interpretation of the expression 'any person' occurring in the definition clause, should lead, on the contrary, to an interpretation, which, to use the words of Maxwell, is to be found in the subject or in the occasion on which the words are used and the object to be attained by the statute. We are aware that any body may be a potential workman and the concept of 'a potential workman' introduces an element of indefiniteness and uncertainty. We also agree that the expression 'any person' is not co-extensive with any workman, potential or otherwise. We think however, that the crucial test is one of community of interest and 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. Whether such direct or substantial interest has been established in a particular case will depend on its facts and circumstances.

11. Ultimately, his Lordship summarised the position thus:

To summarise: 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 arise from the context; the two crucial limitations are:

(1) the dispute must be a real dispute between the parties to the dispute (as indicated in the first two parts of the definition clause) 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. In the absence of such interest the dispute cannot be said to be real dispute between the parties. Where the workmen raise a dispute as against their employer, the person regarding whose employment, non-employment, terms of employment or conditions of labour the dispute is raised, need not be, strictly speaking, a 'workman' within the meaning of the Act, but must be one in whose employment, non-employment, terms of employment, or conditions of labour as a class they have a direct or substantial interest.

12. The majority judgment in the above decision quoted with approval the following observations of Chagla, C. 3., in Narendra Kumar Sen and Ors. v. Labour Appellate Tribunal of India and Ors., : (1953)IILLJ6Bom :

Therefore, when Section 2(k) speaks of the employment or non-employment or the terms of employment or the conditions of labour of any person, it can only mean the employment or non-employment or the terms of employment or the conditions of labour of only those persons in the employment or non-employment or the terms of employment or the conditions of labour of whom the workmen themselves are directly and substantially interested. If the workmen have no direct or substantial interest in the employment or non-employment of a person or in his terms of employment or his conditions of labour, then an industrial dispute cannot arise with regard to such person.

13. Mr.Dolia, has tried to emphasise certain observations made in the judgment of the Supreme Court in the Dimakuchi Tea Estate, 1958 S.C.J. 637 : (1958)1 L.L.J. 500 , that managers and officers are non-workmen and there fore cannot be said to have any community of interest with the workmen under the scheme of the Act. The relevant portion may be quoted (p. 507):

The manager or the chief medical officer cannot obviously be a party to the dispute, because he is not a 'workman' within the meaning of the Act and there is no dispute between him and his employer. That being the position, the award, if any, given by the Tribunal will be binding, under Clause (a) of Section 18, on the parties to the dispute and not on the manager or the chief medical officer. It is extremely doubtful if, in the circumstances stated, the Tribunal can summon the manager or the chief medical officer as a party to the dispute, because there is no dispute between the manager or chief medical officer on one side and his employer on the other. Furthermore, Section 36 of the Act does not provide for representation of a person who is not a party to the dispute. If, therefore, an award is made by the Tribunal in the case which we have taken by way of illustration that award, though binding on the employer, will not be binding on the manager or chief medical officer. It should be obvious that the Act could not have contemplated an eventuality of this kind, which does not promote any of the objects of the Act, but rather goes against them.

Learned Counsel relies on this passage to contend that it is only such persons who have any community of interest under the Act who can be brought within the ambit of the expression 'any person' in Section 2(k) of the Act and that under no circumstances can officers, who have been promoted, come within the ambit of the provisions of the Act, they being no longer workmen. The decision rendered by the Supreme Court has been arrived at by analyzing the various provisions of the Act, and the example of the case of Manager and Chief Medical Officer, relates to such category of officers who at no stage of the case were workmen. It was to emphasise the distinction between those workmen with whom the workmen could have any community of interest that, if we may venture to say so, the Supreme Court distinguished between the class of officers with whom the workmen could have any community of interest, and gave the extreme example of the Manager and Chief Medical Officer, who at no stage were workmen. The following observations from the judgment of the Supreme Court clarifies the position (p. 510):

If, therefore, the dispute is a collective dispute, the party raising the dispute must have either direct interest in the subject-matter of dispute or a substantial interest therein in the sense that the class to which the aggrieved party belongs is substantially affected thereby. It is the community of interest of the class as a whole-class of employers or class of workmen-which furnishes the real nexus between the dispute and the parties to the dispute. We see no insuperable difficulty in the practical application of this test. In a case where the party to the dispute is composed of aggrieved workmen themselves and the subject-matter of dispute relates to them or any of them, they clearly have a direct interest in the dispute. Where, however, the party to the dispute is also composed of workmen who spouse the cause of another person whose employment or non-employment, etc., may prejudicially affect their interest, the workmen have a substantial interest in the subject-matter of dispute. In both such cases, the dispute is an industrial dispute.

The same view has been reiterated by the Supreme Court in All India Reserve Bank Employees Association v. Reserve Bank of India : (1965)IILLJ175SC . Mr.Dolia, appearing on behalf of the Bank has sought to distinguish this decision (relied on by the learned single Judge) on the ground that the Supreme Court in that case refused to interfere in the matter, although at the time of the reference some of the workmen were getting salary less than Rs. 500/- and did not belong to any category of supervisory staff, and that therefore what has been decided in that case has to be taken as ratio decedent on the facts of that case. This argument of learned Counsel is also without any substance the following observations of the Supreme Court (at p. 188) will clearly show that the Supreme Court would have interfered but for the fact that higher scales fixed for Class II employees were admitted by Mr.Chari to be quite generous, thereby obviating the necessity of considering that question. The Supreme Court observed:

It may, however, be said that, if the dispute is regarding employment, non-employment, terms of employment or conditions of labour of non-workmen in which workmen are themselves vitally interested, the workmen may be able to raise an industrial dispute. Workmen can, for example, raise a dispute that a class of employees not within the definition of workman 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 workmen cannot take up a dispute in respect of a class of employees who are not workmen and in those terms of employment those workmen have no direct interest of their own. What direct interest will suffice is a question of fact, but it must be a real and positive interest and not fanciful or remote. It follows therefore that the National Tribunal was in error in not considering the claims of Class II employees whether at the instance of members drawing less than Rs. 500/- as wages or at, the instance of those lower down in the scale of employment. The National Tribunal was also in error in thinking that scales of wages in excess of Rs. 500/- per month at any stage were not within the jurisdiction of the Tribunal or that Government could not make a reference in such a contingency. We would have been required to consider the scales applicable to those in Class II but for the fact that the Reserve Bank has fixed scales which are admitted to be quite generous.

15. To the same effect is the decision of the Supreme Court in Workmen v. Greaves Cotton : (1971)IILLJ479SC , where the earlier decisions were considered. The Supreme Court observed:

It would therefore appear that the consistent view of this Court is that non-workmen as well as workmen can raise a dispute in respect of matters affecting their employment, conditions of service, etc., where they have a community of interest, provided they are direct and are not remote.

This fully answers the point raised by Mr.Dolia.

16. Mr. Dolia has urged that the learned single Judge has erred in not relying on the decision of a single Judge of the Andhra Pradesh High Court in Andhra Bank Limited v. Industrial Tribunal : (1976)ILLJ521AP , which he has cited as part of his argument. The said- decision has been sufficiently explained and the learned Judge has rightly differed from the said decision. It may be mentioned that the judgment of the learned single Judge of the Andhra Pradesh High Court has later been reversed by a Bench of the Andhra Pradesh High Court in Andhra Bank Employees' Association v. Andhra Bank : (1978)IILLJ104AP , with which we are in respectful agreement.

17. In view of the decision of the Supreme Court, we are definitely of the opinion that the reference made at the instance of the Union was competent, as the workmen will be benefited on their promotion as officers by the dispute raised, although it may be that incidentally the officers who have been promoted may also be benefited, if the reference is decided in favour of the workmen. That, however, cannot, by itself, be a ground for holding that the reference is incompetent. We are therefore, satisfied that there are no merits in this writ appeal. It is accordingly dismissed. There will, however, be no order as to costs.

18. Before parting with the judgment, we direct the Tribunal to expeditiously dispose of the matter, which has been unduly delayed for a period of eight years, which could have been avoided had all questions been decided together.

19. After judgment was delivered, learned Counsel on behalf of the appellant made an oral prayer for leave to appeal to the Supreme Court under Article 133(1) of the Constitution of India. As the matter has been decided on the basis of the judgments of the Supreme Court, we do not consider that the case involves any substantial question of law of general importance, which in our opinion needs to be decided by the Supreme Court. The prayer for certificate is refused.


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