G.N. Roy, J.
1. This writ petition is heard as a contested application with notice to the respondents and Mr. N.C. Chakraborly with Mr. Madhusudan Banerjee have appeared for respondents Nos. 1 and 3 and Mr. Amalesh Mitra has appeared for the respondent No. 2.
2. The petitioner No. 1 is an employee of the State Bank of India and also the Chief Secretary of the State Bank of India Staff Association, viz the petitioner No. 2. Against issue of a circular dated 25th March, 1982 by the General Manager (Operations) giving directions relating to office attendance of the employees of the State Bank of India, the instant writ petition has been moved alter demanding justice by the petitioners requesting the State Bank of India to withdraw the said circular. The impugned circular is Annexure 'B to the writ petition and it appears that by the said Circular No. 34 of 1982, the General Manager (Operations) has held that growing indiscipline amongst all categories of staff in many areas of activities of State Bank of India, beside causing tremendous inconveniences to the Bank's customers, has been tarnishing the image of the Bank. At this critical juncture, when serious concern is being expressed both by the public and the Government in the matter of unhealthy state of affairs obtaining in the banking industry and severe adverse criticism on the unpunctuality in attendance by the Bank employees is causing fast erosion of the result of all the good work being done by the majority employees of Stale Bank of India in various spheres. The General Manager has aiso observed in the said circular that it is an observed fact that extreme slackness is permitted at many of the branches/offices of the State Bank of India in monitoring the employees' attendance/-departure. As a service organisation the Bank can ill-afford to sacrifice time discipline amongst the employees and it has been decided by the Bank to accord the highest priority in toning up discipline which alone can increase productivity and ensure better customer service. Punctuality in attendance and unfailing observance of work discipline in all spheres have to be watchwords of the State Bank of India for success. In the said context of the situation it is felt that not only the existing instruction on office attendance needs reiteration but also the following additional guidelines, strict enforcement of which with immediate effect is a must. It appears that by the said circular all employees including officers have been subjected to strict discipline of attendance in office punctually. It has been directed that the attendance register for the award staff will be made available well before the commencement of service hour namely, before 10 A.M. at most of the branches. The Branch Managers/Managers of Division/Departmental Sectional Heads must ensure that the attendance register is withdrawn punctually at the commencement of the working hours (i.e. 10 A.M.). The employees coming to office after the opening time/designated hour of commencement of duty can be refused permission to join office and asked to submit leave applications. Refusal to grant permission to employees to attend office after opening time i.e. 10 A.M. at most offices/designated hour is a prerogative of the management but this should be exercised by the Branch Managers/Departmental Heads judiciously so that cases of genuine defaults in the area are dealt with appropriately after scanning the facts or reasons adduced by the employees in each such case, the employees should submit in writing the causes of the delay and the Branch Manager/Manager of Division/Departmental Head record thereon his decision of permitting or non-permitting to join office, such written submissions being retained in a separate file. The above instructions supersede earlier instructions to allow late attendance upto one hour after the scheduled reporting time. Along with the said circular, the specimens of the memoranda have been enclosed. The Branch Managers and Departmental Heads have been reminded by the said Circular that they should make it clear to the members of the staff that 'unpunctual attendance' and 'unauthorised absence' have been enumerated as acts of misconduct in the rules of the workmen employees as well as officers. Therefore, disciplinary action may be initiated in appropriate cases in terms of the respective service rules of the employees. The Branch Managers and Departmental Heads should take up such cases promptly for initiating of appropriate disciplinary action and any laxity on their part will be an actionable offence and dealt with accordingly. It has also been provided in the said Circular that as regards departure, the attendance register will be made available only at the close of the working hours (i.e. at 5 P.M. at most of the branches). It should be ensured that in no case, the entries made in the attendance register are at variance with the actual timings of departure. To ensure this, the attendance register should be regularly checked and appropriate notings made immediately after the opening and closing hours everyday. Leaving office earlier than the scheduled time of departure and any failure on the part of the employees to record the time of departure before leaving office will also render them liable to disciplinary action.
3. In the instant writ petition the legality and/or validity of the said circular is under question. The petitioners contend that although the authorities of the State Bank of India have a right to fix the hours of attendance and departure and the total working hours of the Bank employees in accordance with the conditions of service of the Bank employees under relevant rules and/or various Awards made in respect of the Bank employees, but if some conditions of service are followed for some time and the authorities intend to change the same they must do so in accordance with law and any ex parte decision and/or implementation of the same without following the requirements in law must be held ' to be illegal.
4. Dr. Pal, the learned Counsel for the petitioners contends that the terms and conditions of service of the employees of the State Bank of India are laid down by different Awards passed at different times and are also guided by Bipartite Settlement arrived at from time to time between the employers and the employees in respect of matters not covered by such Awards or Settlement. The terms and conditions of service have been laid down by some circulars issued by the authorities from time to time. The petitioners contend that one of the matters not covered by the Awards of Settlement is with regard to the attendance of the employees at different branches. or offices of the State Bank of India. With regard to the office attendance, the condition of service of employees was for the first time laid down by the confidential circular No. 83 of 1973 dated 30th November, 1973. The said circular is made Annexure 'A' to the writ petition. It appears from the said Circular that the attendance register will be made available to the members of the staff well before the commencement of the working hours at each office and the register must be withdrawn 10 minutes after the commencement of the working hours and kept with the Section-in-charge or a responsible official and the employees who come thereafter should be marked 'late'. An employee coming after 10 minutes of the commencement of the working hours will sign the attendance register in the presence of the Branch Manager/Departmental Head and verbally explain the reasons for his delay in attendance, If, however, an employee comes more than one hour late, he will submit his explanations in writing for late coming after which he will be permitted to join duty. Employees who will be found to be attending office late habitually will render themselves liable to appropriate disciplinary action. The petitioners contend that the said circular therefore laid down the conditions of service relating to office attendance and under the said circular, the employees were' allowed to join office even if they come late although an employee coming late would be marked 'late' and for habitual late attendance, an employee could be rendered liable for appropriate disciplinary action. The petitioners contend that such condition of service relating to office attendance continued in terms of the said circular until during Emergency proclaimed in 1975. The confidential Circular No. 67 of 1975 dated 7th August, 1975 was issued followed by an office order whereby all employees were required to attend office within time and it was directed that the attendance register would be withdrawn immediately after 10 A.M. and all employees coming after 10 A.M. would have to mark their attendance in a Late Attendance Register to be introduced for the purpose, indicating the correct time of their arrival and the special reasons, if any, for the delay. The said register would be withdrawn immediately after 11 A.M. i.e. one hour after the scheduled commencement of working hours and no employee would be allowed to join his duties thereafter except in cases where he had obtained prior permission from the Branch Manager for attending office late on grounds such as serious illness in the family etc.The petitioners further contend that with the lifting of Emergency, the Bank stopped following the said Circular No. 67 of 1975 and the petitioners contend that if the attendance register of any of the Banks are produced, it will be revealed that the Circular of 1975 has been given a go by. The petitioners contend that even under the said Circular of 1975, the right of the employees to attend office even if they had reported for duty alter1 A.M. had not been taken away and the employees all along even during the days of emergency had enjoyed the privilege and/or customary concession in this regard and the usage that an employee would be allowed to join as a matter of right if he would come after one hour from the commencement of the work. The petitioners contend that thereafter all on a sudden on 25th March 1982 the said Circular No. 34 of 1982 was issued by the General Manager (Operations) and by the said Circular, the right to join office within one hour from the starting of the working hour has been taken away and it is now the absolute discretion of the Branch Manager or Departmental Head to allow an employee to join the office after 10 A.M. The petitioners contend that the impugned Circular dated 25th March, 1982 has been issued in supersession of earlier instructions and by the said Circular the conditions of service and/or privileges and/or customs relating to office attendance have been withdrawn ex parte. The petitioners contend that the respondents cannot unilaterally change the conditions of service of the employees including the petitioners and if the respondents seek to effect changes in the condition of service of the employees they must resort to the provisions in law and any unilateral change in the condition of service will be an exercise in futility. The petitioners contend in the alternative that even if the said Circular has not changed any conditions of service, by the said Circular, the customary concession or privilege in the matter of attending office has certainly been withdrawn and new rule of discipline is sought to be enforced. The petitioners contend that any such withdrawal of any customary concession or privilege or any change in usage or introduction of any new rule of discipline cannot be done without giving notice as required under Section 9A of the Industrial Disputes Act, 1947.
5. For appreciating the contentions made on behalf of the petitioners, the provisions of Section 9A are set out hereunder:
9A -- Notice of change -- No employer, who proposes to effect any change in the condition of service applicable to a workman in respect of any matter specified in the Fourth Schedule, shall effect such change,
(a) without giving to the workman likely to be affected by such change a notice in the prescribed manner and the nature of the change proposed to be effected; or
(b) within twenty-one days of giving such notice.* * * * * *
6. The relevant clauses of the Fourth Schedule referred to in Section 9A of the Industrial Disputes Act are set out hereunder:
Conditions of service for change of which notice is to be given.
* * * * * *8 -- Withdrawal of any customary concession or privilege or change in usage;
9 -- Introduction of new rules of discipline, or alteration of existing rules, except in so far as they are provided in standing orders;* * * * * *
7. Dr. Pal on behalf of the petitioners contends that by the said Circular the Bank authorities have withdrawn the concession or privilege and have also changed the rules of discipline. Accordingly, under Section 9A of the Industrial Disputes Act read with Fourth Schedule framed thereunder, the Bank authorities are under an obligation to give at least one month's notice in accordance with the provisions of Section 9A. Such notice not having been given in the instant case, the enforcement of the Circular with immediate effect must be held to be illegal and violative of the statutory provisions of the Industrial Disputes Act. Dr. Pal has also contended that rules of discipline vis-a-vis attendance in office were changed by the earlier circulars, but by the impugned Circular of 25th March, 1982, the rules of discipline hitherto followed are sought to be changed unilaterally, but the authorities of the State Bank cannot change such service conditions unilaterally. For this contention, a reference has been made to the decision of the Supreme Court made in the case of The Life Insurance Corporation of India v. D.J. Bahadur and Ors. reported in 1981-I L.L.J. 1. It has been held in the said decision that unilateral modification or variation of contract will be an exercise in futility. Dr. Pal has also reliecl on a decision of this Court made in the case of Reserve Bank of India Employees Association v. Union of India reported in 1979 (1) Calcutta Law Journal, page 513. In the said decision for withdrawal of certain concession or privilege of the employees of the Reserve Bank of India and for effecting some changes in the service conditions, a notice under Section 9A of the Industrial Disputes Act was issued and this Court has also noted that the statutory requirement of Section 9A had been fulfilled in the said case. But in the instant case, no such notice whatsoever has been issued. Accordingly, the said circular must be held to be illegal and struck down.
8. Mr. Chakraborty, the learned Counsel appearing for the respondents Nos. 1 and 3 has contended that under the Award made by the All India Industrial Tribunal (Bank Disputes) popularly known as 'Sastry Award', the Bank authorities can fix hours of work for the branches and offices of the State Bank of India and in West Bengal, the working hours has been fixed from 10 A.M. to 5 P.M. with some recess in the mid-day. Similar powers have also been given to the Bank authorities by subsequent Award of National Industrial Tribunal (Bank Disputes) popularly known as 'Desai Award'. So far as the State Bank of India is concerned by Notification No. 4500 IR dated 14th September, 1976 the provisions of West Bengal Shops and Establishment Act, 1963 have been made applicable and under Section 7(4) of the said Act, the period of work and interval for rest shall be arranged by the employer so that the period of work and rest together do not extend more than 10 hours and a half in any one day. Under the Bipartite Agreement dated 31st March, 1977 between the State Bank of India and All India State Bank of India Staff Federation the Bank has the liberty to fix working hours. Mr. Chakraborty has contended that the Bipartite settlement is binding on the parties to the agreement and a party contravening the provisions of such agreement is punishable under Section 31(2) of the Industrial Disputes Act. If the petitioners allege that the respondents have contravened any service conditions governed by the Awards and/or Bipartite settlements binding the employer, then they can bring action under the Industrial Disputes Act and referring to the decision made by the Supreme Court in the case of N.P, Ponnuswami v. The Returning Officer, Namakkal reported in : 1SCR218 , Mr. Chakraborty i has contended that where a right or liability created by the statute which gives special remedy for enforcing it, the remedy provided by that statute must be availed or Mr. Chakraborty contends that for the alleged breach of the conditions of service by issuing impugned circular, the petitioners may protest under Section 31 of the Industrial Disputes Act or may ask for a reference under Section 10 of the Industrial Disputes Act, but the writ petition is not maintainable in the facts of the case. Mr. Chakraborty has contended that State Bank of India may be a 'State' within the meaning of Article 12 of the Constitution but for breach of terms of contract governing the service conditions of employees, a writ petition is not maintainable. He also contends that no condition of service has been changed and irregular attendance is a misconduct under the existing conditions of service and an employee is required to attend office punctually. Mr. Chakraborty contends that the Bank authorities had dealt with leniently the employees for some time past but as growing indiscipline is causing hardship to the members of the public and is also disrupting Bank's function the Bank authorities have decided to enforce the service conditions strictly. By that process no privilege or concession has been withdrawn and there has not been any change in the service condition.
9. Mr. Mitra, appearing for the respondent No. 2, the Personal Manager of the State Bank of India, has also contended that the Bank's hours of business and consequential duty hours of the employees have been fixed by different awards and agreements between the parties and as such, the employer, namely, the Bank authorities can always insist on the attendance of the employees in proper time and such insistence does not amount to change of any condition of service because under the existing conditions of service the duty hours have been fixed. He contends that irregular attendance and unpunctuality are misconduct under the conditions of service and an action which is a misconduct under the existing service conditions cannot be held to be a privilege. The earlier circular only indicated some condonation of lapses on the part of the employees coming late but such condonation of lapses cannot be held to be a privilege when the alleged privilege is nothing but misconduct of the employees. Mr. Mitra contends that whether any lapse will be condoned or tolerated, is within the prerogative of the employer and if such prerogative is not intended to be exercised in the wisdom of the employer, an employee cannot claim condonation of lapses as a matter' of right. Mr. Mitra also contends that the employees have in reality sought to raise an industrial dispute for withdrawal of the alleged privilege by the Bank authorities but if the industrial dispute relates to enforcement of a right or obligation created under the Act, then the only remedy available to the aggrieved party is to seek redress by are adjudication by the competent Labour' Court or Tribunal under the Industrial Disputes Act and for this contention, he has also relied on the decision of the Supreme Court made in the case of The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke reported in1975-II L.L.J. 445, Mr. Mitra has also contended that the decision made in the Life Insurance Corporation's case (1980 Labour and Industrial Cases, page 1218) can be distinguished in the facts and circumstances of the case. In the Life Insurance Corporation's case, there was an agreement laying down conditions of service. In that case, it was decided that any condition of service or agreement relating thereto cannot be changed except by a subsequent agreement and any action purporting to unilateral change of such service condition will be an action in futility. Mr. Mitra contends that in the instant case, it has not been contended that there was an implied agreement between the parties that the working hours should not be insisted strictly but some concession should be given and by such agreement the service condition to that extent had been changed. As such, it cannot be contended that by enforcing strict attendance, a change of the service condition is being effected. He also refers to a decision of the Supreme Com t made in the case of Tata Iron and Steel Co. Ltd. v. Their Workmen reported in11972-II L.L.J. 259, In the said decision also, cancellation of holiday on Sunday was held to be a change of service condition because such holiday on Sunday had been allowed by the employer for a pretty long period and the practice followed for such a long period was held to be an accepted condition of service in that case.
10. Mr. Sengupta, the learned Counsel appearing with Dr. Pal for the petitioners, has, however, replied to the aforesaid contentions of Mr. Chakraborty and Mr. Mitra appearing for the respondents and has contended that the employer has certainly right to insist the employees to maintain punctuality and/or to attend office in proper time, but if on its own accord, the employer has given concession to the employees over a long stretch of time to join office even coming late upto a certain extent, then such privilege or concession cannot be withdrawn without following the procedure as laid down in Section 9A of the Industrial Disputes Act. He contends that even in the subsequent circular of 1975, the Bank authorities did not take away the right of the employees to join office by coming late and as a matter of fact, after lifting of emergency, the said Circular of 1975 was also not given effect to. He contends that privilege is something which permits a person to have a benefit which otherwise such person would not have been entitled for To come late in office is a misconduct for the Bank employees and unless the Bank authorities had given a privilege to an employee to join office by coming late upto certain extent, such employee could not have come and join office as a matter of right without violating the conditions of service. The Bank authorities after considering the difficulties of the employees to come punctually in the office everyday, had decided to give privilege to the employees to attend office by coming late upto a certain extent and such privilege, must be construed as a rule of discipline but by the impugned circular, the Bank authorities are trying to subject the employees to a new rule of discipline and hence it must be held that there has been an attempt to alter the existing rule of discipline or condition of service. Accordingly, a notice under Section 9A is required to be given. Mr. Sengupta also contends that the Fourth Schedule under Section 9A of the Industrial Disputes Act indicates that the privilege and customary usage are also conditions of service, otherwise such things could not have been included in the Fourth Schedule under Section 9A of the Industrial Disputes Act. He has also contended that for violation of statutory protection under Section 9A of the Industrial Disputes Act, an employee can always maintain a writ petition under Article 226 of the Constitution and the argument advanced by the learned Counsels for the respondents that for enforcing a remedy under the Industrial (Disputes Act, only the Labour Court and/or Industrial Tribunal should be approached is misconceived and the provisions of the Industrial Disputes Act cannot oust the constitutional writ jurisdiction of this Court in giving appropriate relief when the employees can establish violation of the statutory provisions by the employer.
11. After considering the respective submissions of the learned Counsels appearing for the parties, it appears to me that the State Bank of India is an instrumentality and/or agency of the Central Government and as such a 'State' within the meaning of Article 12 of the Constitution. For breach of statutory provisions by the State Bank of India which is a public body, a writ petition is maintainable and it cannot be con- tended that the petitioners have remedy only before the Labour Court or Tribunal under the Industrial Disputes Act and not in the Constitutional Writ Jurisdiction even when breach of statutory provision is established. It is not necessary to decide in the instant case as to whether or not the conditions of service of the employees of the Slate Bunk of India are governed by any statutory provisions or whether or not the service conditions still remain in the realm of contract. Even assuming that the conditions of service of the employees of the State Bank India are matters of contract between the State Bank and its employees, a writ petition is certainly maintainable if any condition of service as referred to in the Fourth Schedule is changed without following the procedure as referred to in Section 9A of the Industrial Disputes Act.
12. It, however, does not appear to me that there has been any agreement either expressly or by necessary implication allowing the employees to come late in the offices, branches or units of the State Bank. It appears that duty hours have not yet been changed but considering the hardship of the employees the Bank authorities had earlier decided to take a lenient view and to condone lapse on the part of the employees in attending office to the extent indicated in the circulars given from time to time. It also appears that no uniform policy of condonation of late attendance was followed and in 1975, a different policy was followed and a new Circular was issued relating to attendance of the employees. Hence, it cannot be contended that an uniform policy being followed over a long stretch of '. time, has been transformed in a customary concession or privilege, having the force of a condition of service. A unilateral decision of the employer in exercise of the employer's prerogative to take a lenient view and to condone some lapses does not constitute a change in service condition and unpunctuality still remains a misconduct under the existing condition of service. In my view, an action which is a misconduct of an employee under the existing condition of service cannot constitute a privilege of the employee authorising him to resort to the misconduct even when the employer does not intend to condone such misconduct.
13 Section 9A of the Industrial Disputes Act relates to change in the service condition. The Fourth Schedule under Section 9A specifies the matters relating to change in service condition for which only Section 9A will be applicable. The sine qua non for the applicability of Section 9A read with the Fourth Schedule is that there should be change in the service condition in respect of matters specified in the Schedule. Mere withdrawal of a privilege will not amount to change in service condition until such privilege having been allowed to be enjoyed by the employees over a long stretch of time, as a matter of custom or usage, has in effect become an accepted condition of service. In the facts of the case, it cannot also be contended that any new rule of discipline changing the service condition is sought to be enforced. Late attendance was always a misconduct and is still a misconduct. By the said Circular, the employees have only been reminded that the misconduct of an employee in attending late should not be condoned as a matter of course and an employee before attending office when coming late must give reasons for coming late and if in the discretion of the Bank Manager or in-charge of the office, such reasons appear to be acceptable then the employee may be permitted to join office by such Manager or in-charge of the office. As in the facts and circumstances of the case, it does not appear that there has been any unilateral change in the condition of service and as no customary concession or privilege having the force of an accepted service condition has been withdrawn there is no requirement to give the statutory notice under Section 9A of the Industrial Disputes Act so far as the impugned circular is concerned. The writ petition therefore fails and is dismissed, but I make no order as to costs.
14. It, however, appears to me that in big city like Calcutta there is always unpredictable hazards and disruption in vehicular movement and running of suburban trains is also more often than not, irregular. In the present set up of the big cities like Calcutta, it becomes often difficult for the employees to attend office in time despite their best endeavours and there is no manner of doubt that strict enforcement of punctuality without considering the aforesaid unpredictable and unforeseen impediments and hazards cannot but cause great hardship to the concerned employees and it is reasonably expected that the State Bank authorities, although anxious to enforce discipline in the office, will take into consideration the practical difficulties of the employees in attending office always in time.
Application dismissed without costs.