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Bengal Provincial Bank Employees Association, Calcutta Vs. Salim M. Merchant and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Case NumberMatter No. 188 of 1957
Judge
Reported inAIR1958Cal297
ActsConstitution of India - Article 226; ;Industrial Disputes (Banking Companies) Decision Act, 1955 - Section 6 and 6(1); ;Industrial Disputes Act, 1947 - Section 10(1)
AppellantBengal Provincial Bank Employees Association, Calcutta
RespondentSalim M. Merchant and ors.
Appellant AdvocateR.C. Deb, Adv.
Respondent AdvocateAdditional Solicitor General
DispositionApplication dismissed
Excerpt:
- .....the opinion that a difficulty or doubt has arises as to the interpretation of the award of the all india industrial tribunal (bank disputes), bombay, constituted by the notification of the government of india in the ministry of labour no. s. r. order 35, dated the 5th january, 1952, as modified by the decision of the labour appellate tribunal in the manner referred to in section 3 of the industrial disputes (banking companies) decision act, 1955 (41 of 1955), in respect of the matters specified in the schedule hereto annexed; now, therefore, in exercise of the powers conferred by sub-section (1) of section 6 of the said act, the central government hereby refers the said matter for decision to shri salim m. merchant, member, labour of appellate tribunal, constituted under section 5 of the.....
Judgment:
ORDER

Sinha, J.

1. The petitioner in this case is the Bengal Provincial Bank Employees Association, which is stated to be an association of workmen of 'most' of the bank employees in West Bengal. It is not a registered trade union. but an association of registered trade unions. The first respondent is Shri Salim M. Merchant, described as 'a member of Labour Appellate Tribunal, as also of Industrial Tribunal'. The second respondent is the Union of India. The third respondent is the Calcutta Exchange Banks Association and the fourth respondent is the Indian Banks' Association. It is stated in the petition that the respondents Nos. 3 and 4 are the associations of employers who employed the members of the petitioners' Association. Two schedules are annexed to the petition, the first showing the members of the Indian Bank's Association, as consisting of 15 member banks, and the second showing the members of the Calcutta Exchange Banks' Association. In this case there are 12 member banks. Altogether, therefore, the two associations are stated to comprise of 27 member banks. This application relates to the reference of certain disputes between a number of banking companies situated in West Bengal and their employees. Before I come to the facts of this particular case, it is necessary to relate certain facts leading to the promulgation of the Industrial Disputes (Banking Companies) Decision Act, 1955, being Central Act No. 41 of 1955. Prior to October, 1955, the employees of various banking institutions in the Indian Union raised disputes regarding the terms and conditions of their employment, leading to strikes and various other forms of industrial strikes. The disputes were referred to adjudication, and ultimately an award was made, known as Sen's Award. This award was, however, set aside by a decision of the Supreme Court.

2. Thereafter, there were conciliation proceedings and a further reference was made in July, 1951 to Mr. Devasia and others. This, however, proved infructuous. In or about January, 1952 there was a further reference to a tribunal consisting of 3 members. On or about the 26th of March, 1953, an Award was made, known as the 'Sashtri Award'. There was an appeal against this Award and the Appellate Tribunal modified the Award in various ways. On the 27th of August, 1954 the Government of India acting under Section 15 of the Industrial Disputes (Appellate Tribunal) Act, 1959 modified the Appellate decision. Doubts having been raised as to the scope of the reference and the various awards and their modifications, a 'Banking Award Commission' was appointed to enquire and make a report upon the terms of reference. The Commission constituted of Rajadhakshya, J. but be having died, was substituted by Gajendragadkar J. On the 25th of July. 1955 the Commission made its report and an Act was passed namely the Industrial Disputes (Banking Companies) Decision Act, 1955 which came into operation on the 21st of October, 1955. It is stated in the preamble, to be an Act to provide for the modification of the decision of the Labour Appellate Tribunal dated the 28th day of April, 1954 in accordance with the recommendation of the Bank Award Commission, and for giving effect to the Award accordingly. Section 6 of this Act runs as follows:--

'6. Power to remove difficulties. -- (1) If in the opinion of the Central Government any difficulty or doubt has arisen as to the interpretation of any provision of the award as now modified by the decision of the Appellate Tribunal in the manner referred to in Section 3, it shall refer for decision the matter in respect of which such difficulty or doubt has arisen to a single member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950), or to such Industrial Tribunal constituted under the Industrial Disputes Act, 1947 (XIV of 1947), as it may, by notification in the Official Gazette, specify in this behalf.

(2) The tribunal to which such matter is referred shall, after giving the parties a reasonable opportunity of being heard, decide such matter and its decision shall be final and binding, on all such parties.'

3. The Industrial Disputes Act, 1947 (XIV of 1947), is an Act providing for the investigation and settlement of Industrial disputes and for certain other purposes appearing in the Act. The Industrial Disputes (Appellate Tribunal) Act, 1950 (Act No. XLVIII of 1950) was an Act providing for the establishment of an Appellate Tribunal in relation to industrial disputes and for certain matters incidental thereto. The Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956 came into operation on the 28th of August, 1956. Amongst other things, it repeated the Industrial Disputes (Appellate Tribunal) Act, 1950. By Section 33 of this Act, the Act 48 of 1950 was repealed, but it was provided that not-withstanding such repeal, any appeal or other proceedings pending before the Appellate Tribunal constituted under Act 48 of 1950 would continue as if the said Act had not been repealed. In other words, for the purposes of pending appeals or pending proceedings, the Appellate Tribunal would continue.

4. Upon this background, we come to the facts of the present case. Notwithstanding the Bank Award and the modifications made as aforesaid the employees in certain Banks of West Bengal demanded a compensatory allowance. The employers having declined to pay such allowance, there was a repetition of industrial strife culminating in the recent Bank strikes. On or about the 19th September, 1957 the Central Government, by a notification published in the Gazette of India, made an order in exercise of power under Sub-section (1) of Section 6, Act 41 of 1955. The notification runs as follows:--

'Whereas the workmen of banking companies in the State of West Bengal have demanded from the employers in relation to those banking companies, payment of compensatory allowance at the rate of 25 per cent, of their emoluments to meet the increased cost of living;

And whereas the Central Government is of the opinion that a difficulty or doubt has arises as to the interpretation of the award of the All India Industrial Tribunal (Bank Disputes), Bombay, constituted by the notification of the Government of India in the Ministry of Labour No. S. R. Order 35, dated the 5th January, 1952, as modified by the decision of the Labour Appellate Tribunal in the manner referred to in Section 3 of the Industrial Disputes (Banking Companies) Decision Act, 1955 (41 of 1955), in respect of the matters specified in the schedule hereto annexed;

Now, therefore, in exercise of the powers conferred by Sub-section (1) of Section 6 of the said Act, the Central Government hereby refers the said matter for decision to Shri Salim M. Merchant, Member, Labour of Appellate Tribunal, constituted under Section 5 of the Industrial Disputes (Appellate Tribunal) Act, 1959 (48 of 1950).

SCHEDULE.

Whether the demand for compensatory allowance by the workmen in the banking companies in West Bengal is covered by the directions contained in the award of the All India Industrial Tribunal (Bank Disputes) constituted by the notification of the Government of India in the Ministry of Labour No. S. R. O. 35, dated the 5th January, 1952, modified as aforesaid.'

5. Copies of the notification were forwarded to various bodies and persons including the General Secretary, All India Bank Employees Association, Calcutta.

6. By an order contained in Notification No. S. R. O. 3083 dated 25th September, 1957 published in an extraordinary issue of the Gazette of India, dated 25th September, 1957 the Central Government made a reference, m exercise of the powers conferred by Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act. The relevant part thereof is as follows :--

'Whereas the Central Government is of opinion that an industrial dispute exists between the banking companies specified in Schedule I as employers and the workmen employed in the said banking companies in West Bengal;

And whereas the Central Government considers it desirable that the matters specified in Schedule II which are either matters in dispute or matters connected with or relevant to the said industrial dispute should be referred to a Tribunal for adjudication;

Now, therefore, in exercise of the powers conferred by Clause (d) of Sub-section (1) of Section 10 of the Industrial Disputes Act, 1947 (14 of 1947), the Central Government hereby refers the said industrial dispute for adjudication to Shri Salim M. Merchant being one of the Tribunals constituted under Section 7-A of the said Act for the adjudication of industrial dispute.'

7. Schedule I contains the names of 31 banks. Schedule II contains particulars of the disputes and is set out below :--

'(a) Whether in view of the award of the All India Industrial Tribunal (Bank Disputes) Bombay, constituted by the notification of the Government of India in the Ministry of Labour No. S. R. O. 35 dated the 5th day of January, 1952, as modified in the manner referred to in Section 3 of the Industrial Disputes (Banking Companies) Decision Act, 1955 (41 of 1955), the demand for compensatory allowance by the workmen employed in West Bengal in the Banking companies specified in Schedule I is maintainable;

(b) If the demand is maintainable, what should be the amount of compensatory allowance having regard to-

(i) the economic conditions now prevailing in the country and the necessity for checking inflation in prices and controlling the cost of living;

(ii) the average emoluments of bank employees aforesaid as compared with the average emoluments of employees in other similar institutions in West Bengal;

(iii) all other relevant circumstances.'

8. This rule was issued on or about the 5th October, 1957 and is principally directed against these two orders passed by the Central Government and the prayer is to issue of a Writ of Certiorari quashing the same and for a Writ of Mandamus for the same purpose. I must at once point out that the rule as drawn appears to be defective because the orders complained of are not judicial orders and certainly cannot be set aside by a writ of Mandamus. The appropriate form should have been to ask for a Writ in the nature of certiorari quashing the reference and the proceedings and for a Writ in the nature of Mandamus on the respondents directing them to forbear from) proceeding with the reference.

9. Mr. Deb appearing on behalf of the petitioners has taken the following points :--

(1) That the reference dated the 19th September, 1957 is bad because the Industrial Disputes (Appellate Tribunal) Act, 1950, having been repealed by Section 33 of the Industrial Disputes (Amendment and Miscellaneous Provisions) Act, 1956, the Appellate Tribunal constituted by Act 48 of 1950 ceased to have any existence altogether and no reference could be made to Mr. Merchant who was no longer a member of the Labour Appellate Tribunal constituted by the said Act.

(2) That the interpretation of directions contained in the Award of the All India Industrial Tribunal (Bank Disputes) Bombay as modified, having been referred to Mr. Merchant by the order of reference dated the 19th of September, 1957 could not again be referred, as has been done under the order dated the 25th September, 1957 Schedule II (a) of the said order, which has been set out above.

(3) That the order dated the 25th September, 1957 does not indicate with certainty whatIndustrial Dispute has been referred for adjudication and is therefore bad as being vague arid, uncertain.

10. Mr. Deb advanced a fourth pointwhich I have disallowed and is as follows:--

(4) That the reference dated the 25th of September, 1957 is defective because under Schedule II (b) the Government has limited and or restricted the scope of the reference by issuing directions (i) and (ii) contained therein, which limitations and or restrictions are beyond the jurisdiction of Government and/or are invalid and not binding on the tribunal.

11. This ground has not been taken anywhere in the petition or in the affidavits, and the respondents have not been called upon to support the orders on any such ground. The petition was amended before me, but even then 110 amendment was asked for or effected in support of this ground. I cannot allow a ground like this which might go to the root of things to be taken at the hearing, in this fashion. I have, therefore, disallowed the prayer of Mr. Deb to rely on this ground.

12. The respondents on the other hand have taken two grounds and contend that the application is defective in form and cannot be allowed. The first point is with regard to nonjoinder of parties. It is pointed out that with regard to the reference dated the 25th of September, 1957 it was, as appears from Notification S. R. O. 3083 itself, between the Banking Companies specified in Schedule I thereto and their workmen. Schedule I contains the names of 31 banks. It is said that the respondents Nos. 3 and 4 represent 27 banks only. The names of the banks are set out in Schedule I to annexure 'A' of the petition. It is admitted by Mr. Deb that some of the banks interested in the reference are not before me. It is further argued that in any event the respondents Nos. 3 and 4 are not competent to represent the 27 banks mentioned in the Schedule for the purpose of this application. Similarly, it is said that the petitioner, the Bengal Provincial Bank Employees Association cannot represent the workmen employed in all the Banking Companies of West Bengal. In my opinion, the point of non-joinder is fatal to this application. Even assuming that the respondents Nos. 3 and 4 could represent 27 banks for the purposes of this application, admittedly some of the banks interested in the reference have been left out. This application cannot proceed, and the orders cannot be quashed, in their absence. So far as the order dated the 19th September, 1957 is concerned, the Central Government was proceeding under Section 6 (1) of Act 41 of 1955. In other words, difficulty or doubt has arisen as to the interpretation of the provisions of the Award of the All India Industrial Tribunal (Bank Disputes), Bombay, as modified. I do not see how such an order could be effective in the absence of all the parties to the said Award. Assuming, however, that the interpretation of the provisions of the Award only related to matters which affected the West Bengal Banks (of which there is no evidence beforeme), still it would be necessary to have all the West Bengal banks interested and their employees before me. The petition itself states that the Bengal Provincial Bank's Employees Association is an Association of the workmen employed, not in all the banking companies in West Bengal, but of 'most' of them. Also there is nothing to show before me that even if the respondents Nos. 3 and 4 could represent the 27 banks mentioned in the Scheduled, that they represent all the West Bengal banks. As a matter of fact, it is admitted that they do not. I have already pointed out that copies of the original Notification dated 19th September, 1957 were forwarded to the parties interested therein, including the General Secretary, All India Bank Employees Association, Calcutta, but this Association is not before me. Then again, I do not see how the respondents Nos. 3 and 4 could represent the 27 banks mentioned in the Schedule to the petition for the purposes of this application. The banks are individually parties to the reference dated the 27th September, 1957. I do not find any provision of law by which the respondents Nos. 3 and 4 could represent these banks in an application made for the purposes of challenging the order of reference. The point of non-joinder has expressly been taken by the Union of India and the respondent No. 3, but nevertheless no attempt has been made to bring the ncecessary parties before me. The other print namely that the Bengal Provincial Bank Employees Association has no locus standi to file this application, is a more difficult matter. It is urged that not being a registered trade union, it cannot sue the respondents in this fashion. In answer to it, it is stated that the petitioner is a federation of registered trade unions and therefore entitled to sue. It is unnecessary for the purpose of this application to decide this point because the application must be declared incompetent on the first ground, namely, non-joinder of parties. It would be sufficient to dispose of this application upon this one point, but since the entire application has been argued I will deal with all the points raised, exceptof course the point which I have expressly disallowed, or found unnecessary to decide.

13. The answer to the first point raised, appears to be quite simple. As will appear from Section 6 of Act 41 of 1955, set out above, a reference has to be made to 'a single member of the Labour Appellate Tribunal constituted under the Industrial Disputes (Appellate Tribunal) Act, 1950 (XLVIII of 1950)'. It is true that under Section 33 of Act 36 of 1956, Act 43 of 1950 has been repealed, but pending appeals and proceedings have been saved, as if the Appellate Tribunal constituted under the original Act was still functioning. The position is that at the time that Act 48 of 1930 was repealed, there were several appeals and proceedings pending, and these appeals and or proceedings had not been completed at the timeof the reference dated the 19th September, 1957. In fact, some are still pending. The necessary particulars were absent from the original pleadings before me. In the original petition it was admitted in paragraph 6 that Mr. Salim Merchant is still a member of the Labour Appellate Tribunal. The petitioner, however, at the first hearing before me, amended the petition and thereupon an affidavit has now been filed on behalf of the respondents by the Assistant Registrar, Labour Appellate Tribunal wherein facts have been set out to establish that Mr. Merchant is a single member of the Labour Appellate Tribunal which has not yet completed the appeals and proceedings that were pending before the Appellate Tribunal at the date of the repeal of Act 48 of 1950. Consequently, Mr. Salim Merchant satisfies the provisions of Section 6 of the Act 41 of 1955. He was and still continues to be, a member of the Labour Appellate Tribunal constituted under Act 48 of 1950 and therefore is perfectly competent to hear the reference. The first point made on behalf of the petitioner therefore fails.

14. The second point is a slightly more difficult point. Mr. Deb frames his argument as follows: Firstly, he says that so far as interpretation of the provisions of the Award, namely, the award of the All India Industrial Tribunal (Bank Disputes), Bombay as modified, is concerned, a reference must be made under Section 6 of Act 41 of 1955. This being a special Act, the provisions of Section 10 of the Industrial Disputes Act, is excluded upon the principle that the provisions of a special Act must necessarily exclude the provisions of a general Act unless there are indications to the contrary. Mr. Deb also points out that in the Industrial Disputes Act itself Section 36-A has now been introduced whereby the interpretation of any provision of an Award or settlement may be referred to a Labour Court, Tribunal or National Tribunal. This provision necessarily restricts the power in such cases, of referring under Section 10. In other words, a reference, purely for the purpose of interpretation, must now be made under Section 36-A and not under Section 10. Mr. Deb argues that the reference in question purports on the face of it to be under Section 10. In brief, the point comes to this: According to Mr. Deb, the reference made under the order dated the 25th September, 1957 Schedule II(a), apart from the fact that it should have been made under Section 36-A and not Section 10(1)(d), is completely covered by the reference dated the 19th of September, 1957 and although it is made to the same person, there cannot be 2 references, which are entirely identical in scope. It is further argued that the second reference is in any event vague and uncertain. In my opinion, this point, although very plausible on the face of it, is without substance, and for the following reasons. The reference under Section 6 of Act 41 of 1955 is a very limited reference. When in the opinion of the Central Government, any difficulty or doubt has arisen as to the interpretations of the provisions of the Award, that is to say the Award of the All India Industrial Tribunal (Bank Disputes), Bombay as modified, a reference can be made to resolve the doubt and difficulty, by interpreting the Award. A tribunal to which such areference has been made, could merely interpret the award, but could do no more. In this particular case, what is it that has happened? The Bank Employees in West Bengal have put forward a demand for compensatory allowance. It was not known whether such a demand is covered by the award as modified or not. It is not known, even it they are covered, whether the parties who have now put forward the claim are all entitled to claim benefit of or under the said award or are bound thereby. Consequently, it is not merely a question of interpreting the All India award, bat of dealing with the claim that has now been put forward by the workmen employed in the West Bengal Banks. It is for this purpose that it was necessary, and, in my opinion, quite proper to make the reference dated the 25th September, 1957. Mr. Deb has posed the question as to what would have happened if the 2 references had been made to two different people, who made conflicting awards. In my opinion, it is fruitless to answer such a hypothetical question. The 2 references were made to the same person advisedly, and the intention clearly was to make the one a complement of the other, so that the entire dispute could be effectively settled. A pure interpretation of the All India Award could not be made under the Industrial Disputes Act because Section 6 of Act 41 of 1955 would have operated as a bar, but having interpreted the said All India Award under Section 6, it is still necessary to decide as to whether the present demand for compensatory allowance is maintainable in view of the said award as interpreted under Section 6 of Act, 41 of 1955. It is obvious that a pure interpretation would have been of no practical value. Not only it is to be decided as to whether the present demand is covered by the All India Award, but it has to be decided as to whether, in case it is not covered, what the compensation should be. It is also necessary to decide as to whether the parties to the present reference could or could not take advantage of the All India Award or whether they are bound by it. In other words, the maintainability of the present demand would still have to be considered as a thing apart from a pure interpretation of the All India Award. In my view, therefore, there is no substance in the second point and the orders of reference cannot be validly assailed on this ground.

15. The 3rd point taken is that the reference of 27th September, 1957 is vague and uncertain. What is pointed out is that the Central Government, in that order, has considered it desirable that the matters specified in Schedule II which are ''Either matters in dispute or matters connected with or relating to such Industrial Dispute' should be referred for adjudication. Mr. Deb argues that the Central Government has not made up its mind whether the matters specified in Schedule II are matters in dispute, or are connected with or relevant to the same. In my opinion, this is taking a very narrow view of the order of reference. It is true that it is an Industrial Disputethat can be referred, but, for a proper adjudication of it, matters relevant to it or relating to it have also to be considered in order to effectively adjudicate upon the dispute. In fact, Section 10 has now been amended and Section 10(1)(c) enables a reference, not only as regards an Industrial Dispute, but of any matter appearing to be connected with or relevant to the dispute. I do not think that any one looking at the Schedule would have any doubt as to what the industrial Dispute is. The workmen of the West Bengal Banks have made a demand for compensatory allowance. The question is whether they are entitled to such compensatory allowance, by the All India Award as modified. If it is covered by the All India Award, then the compensatory allowance would be such as provided by it, but if it is not covered, then many questions arise which are relevant to or relate to the dispute. The amount has to be determined. Then again, the question of maintainability has to be decided and this means a consideration of the question as to whether all the parties to the present reference are bound by the All India Award or whether they can all take advantage of it, and so forth. Such questions may be said to be question's relating to or relevant to the Industrial Dispute. In my opinion, the order of reference is not vague and uncertain but sufficient and specific. There is no evidence before me that the Tribunal has felt it to be uncertain or vague. This point therefore fails.

16. In the premises, all the points taken on behalf of the petitioners have failed and the application should be dismissed. The rule is discharged, interim order, if any, is vacated. There will be no order as to costs.


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