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2024 DIGILAW 214 (KER)

CSB Bank Ltd. v. M. A. Rappai

2024-02-19

AMIT RAWAL, C.S.SUDHA

body2024
JUDGMENT : C.S. SUDHA, J. 1. What is the scope and effect of sub-section (2) to Section 33C of the Industrial Disputes Act, 1947 (the Act)? Should the workman’s right to receive the benefit claimed by him be admitted or in other words, not disputed by the employer? If the employer dispute’s the workmen's right to receive the benefit in question, does the Labour Court lose its jurisdiction? Is the jurisdiction of the Labour Court confined or limited only to computation of the benefit in terms of money? Let us consider. 2. This intra court appeal has been filed by the first respondent against the judgment dated 13/01/2023 in W.P. (C) No. 19558/2012. The respondents herein are the petitioner and the second respondent respectively in the writ petition. The parties and the documents will be referred to as described in the writ petition. 3. The petitioner was working as a Clerk-cum-Cashier in the first respondent Bank. He commenced his service as sub staff and was thereafter promoted to the clerical cadre during 1986. He superannuated on 31/05/2009. The post in which the petitioner was working was a permanent post and he was drawing daftary allowance on a permanent basis and also received the said allowance during leave period. At the time of his promotion, his salary was fixed as per Ext.P1 Circular No. 221/1983 dated 02/12/1983. His salary in the clerical category was fixed taking into consideration the daftary allowance drawn by him. Accordingly, the first respondent Bank paid salary to the petitioner till 1992. However, in the year 1992, the first respondent Bank suo motu reviewed the pay scale of the petitioner and re-fixed the salary on promotion to a lesser scale with retrospective effect. When the salary was re-fixed, the daftary allowance drawn by the petitioner in the lower cadre was not taken into account. The difference in salary was also recovered in installments from the petitioner. As the Unions were agitating the issue before the Labour Authorities, the petitioner was advised that his grievance would also be redressed when the issue was finally decided. The difference in salary was also recovered in installments from the petitioner. As the Unions were agitating the issue before the Labour Authorities, the petitioner was advised that his grievance would also be redressed when the issue was finally decided. In Industrial Dispute No. 268/2006, the Industrial Tribunal-Cum-Labour Court, Ernakulam was called upon to consider the question whether the first respondent Bank was justified in not taking special allowance for the purpose of fitment and in altering the date of increment to the date of promotion to the sub staff on promotion to the clerical cadre. The Tribunal as per Ext.P3 award dated 06/07/2007 found that the bank was not justified in strictly following Ext.P1 Circular dated 02/12/1983. The special allowance of subordinate staff who were discharging duties of a permanent nature attached to their post and of fitment in the promoted post were not taken into account. Thereafter, when the first respondent Bank implemented Ext.P3 award, the benefit of the same was given to one hundred and fourteen (114) workmen whose wages were fixed as per Ext.P4 circular dated 25/08/1993 issued by the bank changing the fitment formula on promotion to clerical cadre. Except one employee no other employee promoted as per Ext.P1 Circular was given the benefit of Ext.P3 award. As the benefits of Ext.P3 award were not granted to the petitioner, Ext.P6 claim petition under Section 33C (2) of the Act before the second respondent was preferred. 4. The first respondent Bank filed counter statement denied the allegation of the petitioner that he was drawing daftary allowance on a permanent basis. The petitioner was paid special allowance @ Rs. 20/- as cash allowance while working at the Kozhikode City branch during 1982; special allowance @ Rs. 34 as bill collection allowance while working at the branch in Cochin during 1983 and was paid special allowance @ Rs. 66/- as daftary allowance while he was working at the head office of the bank. The employees discharging duties of a permanent nature alone are entitled for special allowance on a permanent basis and if an employee is entitled to an allowance on permanent basis, the same would be specifically stated in the order of appointment. 66/- as daftary allowance while he was working at the head office of the bank. The employees discharging duties of a permanent nature alone are entitled for special allowance on a permanent basis and if an employee is entitled to an allowance on permanent basis, the same would be specifically stated in the order of appointment. Special allowance is only an additional remuneration paid for performing duties listed against the category of special allowance and the same has been specifically mentioned in the 1st Bipartite Settlement between the Bank and the Union. Merely because a person was paid special allowance during the leave period, would not make the special allowance paid on a permanent basis as has been mentioned in the Bipartite Settlement. At the time of promotion of the petitioner, initially his salary was fixed by including the special allowance of Rs. 66/- which he was temporarily drawing. But that was a mistake in calculation made by the first respondent Bank. When the mistake was noticed, the same was rectified after due notice to the employee vide H.O. letter dated 18/03/1992. The petitioner was advised to repay the excess amount paid to him, which he did without any objection. His only request was that the amount of Rs. 300/- deducted from his salary may be excluded while calculating 50% deduction for availing loans. Towards the said purpose, he had also submitted a letter dated 24/11/1992, pursuant to which the said request was allowed. 4.1. The fitment of sub staff on promotion to clerical cadre was being effected in terms of Ext.P1 Circular. As per the said Circular, on promotion from the subordinate cadre to the clerical cadre, the basic pay would be notionally fixed in such a way that the salary drawn by the staff in the subordinate cadre is not reduced. After fixing the basic pay thus, the next increment in the clerical cadre would be added to the basic pay. The basic pay after adding the additional increment would be the basic pay of the promotee with effect from the date of the joining duty in the clerical cadre. The salary for the above purpose would include basic pay, dearness allowance, special pay if any, drawn on a permanent basis but does not include any special allowance drawn on a temporary basis. The salary for the above purpose would include basic pay, dearness allowance, special pay if any, drawn on a permanent basis but does not include any special allowance drawn on a temporary basis. The length of receipt of special allowance by itself would not determine the nature of special allowance as permanent or temporary. The salary of the petitioner had been duly increased on his promotion and the conditions in Ext.P1 have been implemented in toto. The issue raised by the petitioner was never considered by the Tribunal in Ext.P3 award, thus Ext.P6 claim petition was not maintainable. 5. Ext.P6 claim was dismissed by the Tribunal as per Ext.P11 order dated 23/05/2012. The Tribunal relying on the dictum in Chief Superintendent, Government Livestock Farm Hissar vs. Ramesh Kumar, (1997) 2 SCC 363, held that the remedy of Section 33C (2) of the Act is available only when there is no dispute about the entitlement of the workman. The remedy under the Section cannot be invoked in a case where the very entitlement is disputed. The proper course for the petitioner would be to have his claim or entitlement determined by a competent court or tribunal and in the event of the non-payment of the amount payable to him as per his entitlement under such determination, he could invoke the remedy under Section 33C (2). 6. Aggrieved by Ext.P11 order, the petitioner filed the writ petition. The learned Single Judge relying on the dictums in Ambica Mills Ltd. vs. Second LC, (1967) 2 LLJ 800 and Namor Ali vs. The Central Inland Water Transport Corporation Ltd. AIR 1978 SC 275 , held that Ext.P6 application filed by the petitioner was maintainable and so the dismissal of the same by Ext.P11 order without considering the evidence adduced was incorrect. Hence, Ext.P11 order was set aside, and the Tribunal has been directed to reconsider Ext.P6 claim in accordance with law with notice to the parties within a period of three months from the date of receipt of a copy of the judgment. The first respondent Bank aggrieved, has come up in appeal. 7. The learned counsel for the first respondent Bank submitted that the learned Single Judge has gone wrong in interpreting the scope of Section 33C (2) of the Act. Ext.P3 award has not been properly applied or interpreted. The first respondent Bank aggrieved, has come up in appeal. 7. The learned counsel for the first respondent Bank submitted that the learned Single Judge has gone wrong in interpreting the scope of Section 33C (2) of the Act. Ext.P3 award has not been properly applied or interpreted. In Ext.P3 award, it has been clearly held that special allowance of subordinate staff who are discharging duties of a permanent nature, attached to the post and which attracts special allowance for the purpose of fitment in the promoted post is to be taken into account. The daftary allowance that was drawn by the petitioner was not of a 'Permanent nature'. Therefore, the observation of the learned Single Judge to the contrary is incorrect. The mere fact that the bank had extended the benefit of Ext.P3 award to 114 eligible employees who had been promoted from sub staff cadre to clerical cadre would not confer the same right to the petitioner. The petitioner had drawn various special allowances for discharging special duties at different points of time. The special allowance that he was drawing was not on a permanent basis. Therefore, he was not eligible to fixation of salary on promotion to clerical cadre reckoning the special allowance drawn. The petitioner was not attending works attracting daftary allowance on permanent basis and therefore the said allowance could not be taken into account for fixation of salary in the clerical cadre. There has never been any settlement or award holding that the petitioner was eligible for the benefits claimed by him. In the absence of the same, the petitioner had no right to raise the claim in the nature as has been raised in Ext.P6. As the learned Single Judge has gone wrong in interpreting the provisions of law and Ext.P3 award, the impugned judgment requires to be interfered with, argues the learned counsel for the first respondent Bank. Per contra the learned counsel for the petitioner supports the impugned judgment and submitted that the same calls for no interference. 8. Heard both sides. 9. As the learned Single Judge has gone wrong in interpreting the provisions of law and Ext.P3 award, the impugned judgment requires to be interfered with, argues the learned counsel for the first respondent Bank. Per contra the learned counsel for the petitioner supports the impugned judgment and submitted that the same calls for no interference. 8. Heard both sides. 9. The argument advanced on behalf of the first respondent Bank is that Ext.P6 claim of the petitioner is beyond the scope of jurisdiction of the Labour Court under Section 33C (2) of the Act as the petitioner's entitlement to the special allowance has to be determined first and only after the same has been fixed, Section 33C (2) claim would be maintainable. Here, it would be apposite to refer to a Constitution Bench decision of the Apex Court in Central Bank of India Ltd. vs. P.S. Rajagopalan, AIR 1964 SC 743 , the relevant portion of which reads: “16. Let us then revert to the words used in S.33C(2) in order to decide what would be its true scope and effect on a fair and reasonable construction. When sub-sec. (2) refers to any workman entitled to receive from the employer any benefit there specified, does it mean that he must be a workman whose right to receive the said benefit is not disputed by the employer? According to the appellant, the scope of sub-s. (2) is similar to that of sub-s. (1) and it is pointed out that just as under sub-s. (1) any disputed question about the workmen's right to receive the money due under an award cannot be adjudicated upon by the appropriate Government, so under sub-s. (2) if a dispute is raised about the workmen's right to receive the benefit in question, that cannot be determined by the Labour Court. The only point which the Labour Court can determine is one in relation to the computation of the benefit in terms of money. We are not impressed by this argument. In our opinion, on a fair and reasonable construction of sub-sec. (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. We are not impressed by this argument. In our opinion, on a fair and reasonable construction of sub-sec. (2) it is clear that if a workman's right to receive the benefit is disputed, that may have to be determined by the Labour Court. Before proceeding to compute the benefit in terms of money the Labour Court inevitably has to deal with the question as to whether the workman has a right to receive that benefit. If the said right is not disputed, nothing more needs to be done and the Labour Court can proceed to compute the value of the benefit in terms of money; but if the said right is disputed, the Labour Court must deal with that question and decide whether the workman has the right to receive the benefit as alleged by him and it is only if the Labour Court answers this point in favour of the workman that the next question of making the necessary computation can arise. It seems to us that the opening clause of sub sec. (2) does not admit of the construction for which the appellant contends unless we add some words in that clause. The Clause “Where any workman is entitled to receive from the employer any benefit” does not mean “where such workman is admittedly, or admitted to be, entitled to receive such benefit.” The appellant's construction would necessarily introduce the addition of the words “admittedly, or admitted to be” in that clause, and that clearly is not permissible. Besides, it seems to us that if the appellant's construction is accepted, it would necessarily mean that it would be at the option of the employer to allow the workman to avail himself of the remedy provided by sub-s. (2), because he has merely to raise an objection on the ground that the right claimed by the workman is not admitted to oust the jurisdiction of the Labour Court to entertain the workman's application. The claim under S.33C(2) clearly postulates that the determination of the question about computing the benefit in terms of money may, in some cases, have to be preceded by an enquiry into the existence of the right and such an enquiry must be held to be incidental to the main determination which has been assigned to the Labour Court by sub-sec. (2). (2). As Maxwell has observed “where an Act confers a jurisdiction, it impliedly also grants the powers of doing all such acts, or employing such means, as are essentially necessary to its execution.” (Maxwell on Interpretation of Statutes p.350.) We must accordingly hold that S.33C(2) takes within its purview cases of workmen who claimed that the benefit to which they are entitled should be computed in terms of money, even though the right to the benefit on which their claim is based is disputed by their employers. Incidentally, it may be relevant to add that it would be somewhat odd that under sub-s. (3), the Labour Court should have been authorised to delegate the work of computing the money value of the benefit to the Commissioner if the determination of the said question was the only task assigned to the Labour Court under sub-s. (2). On the other hand, sub-s. (3) becomes intelligible if it is held that what can be assigned to the Commissioner includes only a part of the assignment of the Labour Court under sub-s. (2).” (Emphasis supplied) 9.1. We also refer to the dictum in Central Bank of India vs. Sirir Kumar Shaw, 1976 KHC 767 : (1976) 2 SCC 859 , in which case the respondent therein, was working as a clerk in the Central Bank of India and performing the duties of the Clearing House representative on behalf of the Bank. He claimed that in accordance with the terms of the bipartite settlement dated 19/10/1966 he was entitled to the “special allowance” fixed for special assistants. The appellant Bank denied that the respondent was a special assistant or that his duties at the Clearing House involved duties listed in respect of the category of special assistants. The Labour Court allowed the respondent's application filed under S.33C(2) of the Act. When the matter reached before the Apex Court, it was inter alia contended by the appellant Bank that the application was not maintainable under S.33C(2). This contention was held to be wholly without merit. It has been held that what the Labour Court had to do was to interpret the terms of the bipartite agreement, which it was entitled to do under the section. 10. This contention was held to be wholly without merit. It has been held that what the Labour Court had to do was to interpret the terms of the bipartite agreement, which it was entitled to do under the section. 10. Therefore, while the existence of a right is a condition precedent to an application under Section 33C (2), the fact that it is denied or that the examination of the claim requires an enquiry into the existence of the right does not exclude the jurisdiction of the Labour Court. In the light of the aforesaid decisions, the learned Single Judge was right in holding that Ext.P6 petition is maintainable. No ground for interference is made out. 11. In the result, the Writ Appeal is dismissed. 12. Interlocutory applications, if any pending, shall stand closed.