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Sankar Prasad Banerjee Vs. Central Government, Labour Court and ors. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtKolkata High Court
Decided On
Judge
Reported in(1975)ILLJ71Cal
AppellantSankar Prasad Banerjee
RespondentCentral Government, Labour Court and ors.
Cases ReferredS. Pondubhai v. Bombay Cycle Importing Co.
Excerpt:
- .....were given, in lieu fixed monthly allowance of rs. 67 and rs. 50 respectively. on july 1, 1955 the state bank of india, constituted under the state bank of india act, 1955, took over the undertaking of the imperial bank, and its employees became under the provisions of the said act employees of the state bank under same terms and conditions. in 1963 the petitioner came across a letter of december 19, 1962 which directed that all members of the central office and departments under its control in bombay, who were not drawing central office allowance, were to be paid an allowance of rs. 35 per mensem. the petitioner was never paid the said central office allowance though he had been working and still continued to work in the central accounts office which formed part of the central office of.....
Judgment:

Salil Kumar Datta, J.

1. This is an appeal by the petitioner against an order dated September 16, 1971 passed by A.K. Sen, J., summarily dismissing his application under Article 226(1) of the Constitution. The petitioner's case in brief is that he was appointed a clerk by the Imperial Bank of India on January 13, 1947 and was assigned to work in its Central Accounts Office. The petitioner was duly confirmed in his appointment on August 1, 1947. The said Bank, constituted under the Imperial Bank of India Act, 1920 functioned under the control of two Managing Governors who had their separate establishment with assistants and clerks. This office establishment was known as Central Office and had three Sections (a) Managing Governors Section, (b) Chief Inspector's Section and (c) Accounts Section. The entire staff of the Central Office moved with the Managing Governors who used to visit by rotation Bombay, Madras and Calcutta to hold Central Board meetings. Since about 1925, the Chief Inspector's Section and the Accounts Section of the Central Office were located at Calcutta under the supervision of the Chief Inspector. From 1927 the above two departments of the office of the Chief Inspector were known as 'Central Accounts Office' under the charge of the Superintendent.

2. With effect from January, 1930, the assistants and clerks in Central Office who were given daily and transfer allowances, were given, in lieu fixed monthly allowance of Rs. 67 and Rs. 50 respectively. On July 1, 1955 the State Bank of India, constituted under the State Bank of India Act, 1955, took over the undertaking of the Imperial Bank, and its employees became under the provisions of the said Act employees of the State Bank under same terms and conditions. In 1963 the petitioner came across a letter of December 19, 1962 which directed that all members of the Central Office and Departments under its control in Bombay, who were not drawing Central Office allowance, were to be paid an allowance of Rs. 35 per mensem. The petitioner was never paid the said Central Office allowance though he had been working and still continued to work in the Central Accounts Office which formed part of the Central Office of the Imperial Bank. It was customary with the Imperial Bank to pay the Central Office allowance mentioned above but the State Bank was withdrawing such customary benefits.

3. The petitioner with other employees made representations to the authorities but as no relief was obtained he filed an application under Section 33C(2) of the Industrial Disputes Act, 1947 before the Central Government Labour Court for necessary relief. The application numbered as L.C. 6 of 1968 was confined to the claim for period from July 1, 1955 to August 31, 1968 at the rate of Rs. 50 per mensem totalling Rs. 7900. The application was opposed by the State Bank contending that the benefit claimed was not admissible under Section 33C(2) of the Act. It was stated that the benefit was payable only to the workmen serving in the Central Office in Bombay as defined in Section 16(1) of the State Bank of India Act and was never payable to workmen working outside Bombay. Under the service conditions of the petitioner, such amount was never payable nor paid at any time and was not included in the Sastry and Desai awards as modified by agreement and the Central Office never included the clerks and assistants of the Central Accounts Office.

[By judgment dated May 21, 1969 the Central Labour Court gave its award holding inter alia:

(a) As a matter of economy and convenience the Central Board of the Imperial Bank decided in 1925 to locate a part of the Central Office, namely, Chief Inspector's Section and Accounts section parmanently at Calcutta and to allocate the duty of moving with the Managing Governors to the other part, namely, Managing Governor's section. These departments located at Calcutta were placed under general control of the Chief Inspector and the office was redesignated as the Chief Inspector's Office and subsequently renamed as ' Central Accounts Office.'

(b) The Central Office allowance confined to the Managing Governor's section and later the Managing Director's section which was basically a touring allowance for movement, was converted into a monthly allowance in 1929.

(c) The benefit was extended by the Slate Bank, after the take over, to all members of the clerical staff at Central Office in Bombay.

(d) There was an administrative division of the Central Office by the Imperial Bank and thereupon the Central Accounts Office became a completely different office, and accordingly amount payable to the Central Office employees in Bombay was not payable nor paid to the Central Office at Calcutta.

(e) After the take over, under Section 16(1) of the Act, it could not be said that sections if the Central. Office left at Calcutta still continued to be part of the Central Office, as there was a complete separation of the Central Office from the Central Accounts Office, one having its statutory location in Bombay, and other its location in Calcutta.

In the above view, the application was dismissed, but the question whether there could be an industrial dispute on account of unhealthy discrimination in matters of payment of wages between two offices was kept open.

4. The petitioner filed another application on May 8, 1970 before the Central Government Labour Court, being registered as LC6 of 1970 under Section 33C(2) of the Industrial Disputes Act, 1947. It was claimed on the same allegations and contentions that the petitioner was entitled as clerk of the Central Accounts of the Central Office of the Imperial Bank to the Central Office allowance at the rate of Rs. 50 per mensem from January 13, 1947 to June 30, 1955 for an amount totalling Rs. 5080.65. The petitioner also chimed the said Central Office allowance from the State Bank after the said period upto April 1, 1970. It was further aliened that the composition of the Central Office of the State Bank was of the same pattern as of the Imperial Bank-with the Chairman and Managing Director's section located at Bombay, moving to Calcutta and Madras periodically and the Central Accounts Office with departments of Inspection, Stationery and Premises was located at Calcutta. With the development of the Bank after the take over, there came into existence a complicated system with various ramification of its offices, all around the nucleus of the three sections of the Central Office, namely. Chairman and Managing Director's Section, Central Accounts Office and Foreign Department The Central Accounts Office, maintains accounts of different department of Central Office, Central Office staff salary and service record, statements of accounts of the Bank. Under Section 16(1) of the State Bank of India Act, 1955, the Central Accounts Office constitute the Central Office of the State Bank, even if they are located elsewhere than in Bombay. The petitioner contended that he continued to be an employee of the Central Office under the State Bank and was entitled to a monthly Central Office allowance at the rate of Rs. 50 from July 1, 1955 to April 30, 1970 for an amount totalling Rs. 8,900. The petitioner further contended that no part of the claimed was barred by limitation or by res-judicata, as the instant claim was based on an interpretation of the directions of the Imperial Bank issued on December 17, 1929 for payment of Central Office allowance which formed pact of the Standing Instructions.

5. This application, in which originally the Central Board of the State Bank was made the only opposite party, was opposed by the Central Board by filing a written statement. It was contended that the application was barred by res judicata in view of the decision in LC.6 of 1968. The claim was also opposed on the same grounds as in the earlier application and all material allegations regarding the Central Accounts Office being part of the Central Office were denied. The State Bank, subsequently made a party, filed its written statement in the same lines as filed by its Central Board.

6. The Central Government Labour Court by its award of June 15, 1971 dismissed the said application holding inter alia.

(a) The earlier decision in LC.6 of 1968 that the Central Accounts Office and the Central Office are not one but there has been separation effected between the two and that it could not be presumed that all the benefits given to the Central Office would be automatically available to the petitioner operated as res judicata. Further the petitioner could enforce his rights only against his employer the State Bank and not against the Central Board and the State Bank was in effect made a party and the State Bank was also the only party in the earlier application.

(b) On merits also, which the Court proceeded to examine in view of some new documents produced, collected laboriously by the petitioner, it was held that merely because the Central Accounts Office was dealing with all accounts of the branches as also of the Central Office itself, would not have the effect of making the Central Accounts Office the Central Office itself, as these were being done for the sake of convenience of business. Further even if some officers were treated with undue favour, that would not establish the right of the petitioner to Central Office allowance.

7. The petitioner moved against this award in this Court by an application under Article 226(1) of the Constitution praying for a writ in the nature of madamus directing the State Bank and its Central Board to pay the petitioner the Central Office allowance claimed by him. The application as indicated earlier was rejected by this Court by a summary order.

8. The petitioner at the hearing of the appeal, appeared in person and argued his case with ability and persistence. It was contended by him firstly that the application out of which the appeal arises was not barred by res judicata, as would be evident by reason of the fact that the petitioner's claim against the Imperial Bank upto June 30, 1955 which under the statute devolved on the State Bank, was not the subject-matter of the claim in the earlier application. Again the parties in the two proceedings were not the same, as the Central Board of the State Bank was impleaded only the latter application. It was also contended that even on merits which the Labour Court examined in the latter application, the case deserved consideration by this Court. Further the scope and extent of the application of the principle of res judicata in industrial adjudication required serious consideration by this Court and the application should not have been dismissed in limine.

9. Mr. Manas Nath Roy appearing with Mr. Sukumar Sinha for the respondents State Bank and its Central Board submitted that the principle of res judicata applies to industrial adjudications and the Central Labour Court rightly held that the present application was so barred. Further, more reconsideration of the case on merits upon fresh documentary evidence discovered by the petitioner did not mean to imply that the principle of res judicata had no application to the case before us. Both parties have referred to some decisions which will be presently considered.

10. There can be no dispute that though the claim in the earlier petition is confined to the period after the take over of the Imperial Bank by the State Bank, the foundation of the claim was on the Central Office allowance which it was claimed, was payable by the Imperial Bank to the clerks and assistants of its Central Accounts Office as a part of the Central Office. In considering the claim for the period after the take over, the Court had to investigate if there was any basis of the claim payable by the Imperial Bank as the rights andbenefits of service under the Imperial Bank were preserved even after the take over by the State Bank. The Labour Court in investigating the soundness of the claim in the earlier application came to the conclusion that there was administrative division of the Central Office by the Imperial Bank, where by the Central Accounts Office became a completely different office and accordingly the amount payable to the Central Office employees at Bombay was not payable nor paid to the Central Accounts Office at Calcutta and after take over, Section 16(1) of the State Bank of India operated as a bar to the claim. The reconsideration of the claim in the latter application on the basis of thedocuments since discovered by the petitioner did not in our opinion throw upon the question at issue for fresh adjudication and it could not be said that discovery of fresh evidence though it may be ground for a review, will exclude the operation of the principle of res judicata. The Court re-examined the question for the reasons it recorded, namely, to satisfy the petitioner who had been laboriously fighting a lone battle on painstaking research of documents though it held that the last application was barred by the principles of res judicata.

11. The question now to be considered is whether the said principle of res judicata is applicable to industrial adjudications. In Burn and Co. v. Their Workmen : (1957)ILLJ226SC , the Court observed:

That section (Section 11 of the Code of Civil Procedure) is no doubt in terms inapplicable to the present matter but the principle underlying it, expressed in the maxim interest rei publican ut sit finis litium is founded of sound public policy and is of universal application....And there are good reasons why this principle should be applicable to decisions of Industrial Tribunalsalso.

12. It was held that the industrial adjudications are intended to have long term operation and at the same time liable to be modified by change in the circumstances on which they are based.

13. In Guest Keen Williams P. Ltd. v. P.J. Sterling : (1959)IILLJ405SC , the Supreme Court in rejecting the argument that the claim for modification of a standing order relating to age of superannuation was barred by acquiescence and laches observed that Industrial Tribunals should be slow and circumspect in applying technical principles such as acquiescence and estoppel.

14. In Workmen of Balmer Lawrie and Co. Ltd. v. Balmer Lawrie and Co. Ltd. and Anr. : (1964)ILLJ380SC , the Supreme Court observed:

When a wage structure is framed, all relevant factors are taken into account and normally it should remain in operation for a fairly long period, but it would be unreasonable to introduce considerations of res judicata as such, because for various reasons which constitute the special characteristics of industrial adjudication the said technical considerations would be in admissable.

15. In the case of the Management, Shahdara (Delhi) Saharampur Light Railway Co. Ltd. v. S.S. Railway Workers Union : (1969)ILLJ734SC , the Court noted that with the constant spiralling of prices the principle would appear to have lost much of its efficacy and it was observed:

The trend in recent decisions is that application of the technical rules such as res judicata, acquiescence estoppel, etc., are not appropriate to industrial adjudication.

16. In Agra Electric Supply Co. Ltd. v. Alladin and Ors. A.I.R. 1970 S.C. 513, the Court found that the subsequent reference and award were made in circumstances different from those prevailed in the earlier reference and award and this factor made it doubtful the application of the principle of res judicata.

17. The ratio of the decisions referred to by the parties as noted above appears to be that the principle of res judicata would be normally applicable to industrial adjudications for awards as industrial settlements are intended, consistent with the policy of the Industrial Disputes Act, 1947, to be operative for a fairly long period unless there is a change of circumstances which may be the basis of the award. In cases where the award is based on prevailing circumstances like determination of wage structure and the like on existing price index, with the constant change of circumstances like spiralling of prices, the principle of res judicata would be inappropriate and inapplicable. Such principle would, however, be applicable when the award is not based on prevailing circumstances but on rights claimed long existing but found by the Labour Court as nonexistent and there is no scope for any change of the rights or in the claim of the workmen on the employer by reason of the change of circumstances. In this state of affairs there can be no dispute that in such cases, the principle of res judicata will have full application.

18. Mr. Roy has referred to the decision in Upendra Subhama v. First Labour Court Bombay 1965-II L.L.J. 405, where a Division Bench of the Bombay High Court held that when an earlier application under Section 33C(2) is dismissed on account of the petitioner not adducing evidence, a second application for identical relief would be barred. The dismissal of the petition for the failure on the part of the petitioner to prove his case would operate as res judicata. Mr Roy also referred to the decision in S. Pondubhai v. Bombay Cycle Importing Co. 1970-II L.L.J 559, where the Madras High Court was considering the dismissal of a second application for back wages by a Labour Court. The Labour Court dismissed an application for back wages on a construction of Section 33C(2), and it was held by the Labour Court that a second application, also relating claim for back wages was barred on the principles of res judicata. It was held by the High Court that sucessive claim petitions could not be filed in the Labour Court even if the earlier claim petition was dismissed on erroneous construction of Section 33C(2).

19. Apart from the above decisions in the present case, as we have seen, any change of circumstances would have no material or any bearing on the issue involved in the proceeding. The proposition about the applicability of the principles of res judicata as enunciated in the decisions of the Supreme Court referred to above, applies in our opinion, with full force and effect as already noted and it mast be held that the Labour Court rightly held that the application was barred by the principles of res judicata.

20. A small point was raised by the petitioner about the parties to the two applications. In the second application originally the Central Board of the State Bank was the only party. Subsequently to avoid the dismissal of the application the State Bank was also made a party and the State Bank was, as we have seen, was also the only party in the earlier application. There is and can be no dispute that the State Bank is the employer of the petitioner and under the law liable to him for any wages as may be found due, There is thus no scope for avoiding the application of the principle of res judicata for the reason that the parties in two proceedings are not the same.

21. As we have found that the Labour Court was justified in holding that the subsequent application was barred by res judicata, we do not propose to enter into the merits of the case, a step taken by the Labour Court only to be condemned by the petitioner.

22. For the above reasons, the appeal fails and is dismissed, but in the circumstances without any order as to costs.

A.C. Gupta, J.

23. I agree.


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