Central Bank of India vs Union of India

Ashoke Kumar Dasadhikari, J.—The subject matter of challenge in this writ petition is the award dated 23.10.1998 passed by the Presiding Officer of the Central Government Industrial Tribunal at Kolkata against reference No. 23 of 1997 wherein the writ petitioner bank was respondent. The reference was made by the Central Government by order No. L-120I2/191/96/IR(B-II) dated 20/24-06-97, in exercise of its power u/s 10(1)(d) and (2A) of the Industrial Disputes Act, 1947. The dispute referred before the Tribunal for adjudication reads as follows: Whether the action of the management of Central Bank of India, Calcutta in fixing the basic pay of Shri N.K. Mandal @ Rs. 1225/- at par with Shri A.B. Majhi though junior to him at the time of promotion from sub-ordinate cadre, i.e. on 1.10.91, is legal and justified? If not, to what relief the said workman is entitled?

The reference was heard before the Tribunal. After hearing the parties the Tribunal passed an award in favour of the respondent No. 5, Sri Nirmal Kumar Mondal, the workman concerned and held that the fixation of his pay on 01.10.1991, that is, the date of promotion from sub-staff to clerical, was erroneously made at Rs. 1225/-, as it ought to have been made at Rs. 1244/- in the minimum (basic pay of Rs. 1050/- at the subordinate cadre plus special allowance of Rs. 119/- plus minimum increase of Rs. 75/-). The Management shall pay him the difference of his basic pay as fixed by the Tribunal along with all other consequential benefits on such fixation till 31.12.1995 when he will be entitled to get his higher pay on the basis of his notional fixation from 01.01.1996.

The brief facts of this case is that Sri Nirmal Kumar Mondal, who joined as peon in the bank on 15.06.1983, was posted at bank''s Regional office at Durgapur. His annual increment used to fall due in June every year while he was working in subordinate cadre. His basic pay was Rs. 1050/- per month as peon on the date of his promotion to clerical cadre as per 5th bipartite settlement. He was promoted as clerk on and from 01.10.1991 and posted at Midnapore branch of the bank and consequentially his annual increment was reckoned from June every year in terms of the promotion policy agreement. Fitment in the scale of pay of the said workman, Sri Nirmal Kumar Mondal was made at Rs. 1225/- whereas the scale of pay of one Sri A.B. Majhi, who was junior to him and joined as peon on 31.03.1984, was fixed at Rs. 1225/- although his basic pay on promotion as clerk was Rs. 1015/-.

The respondent No. 5, being the workman, was aggrieved and dissatisfied with such fitment of his pay on promotion on the basic pay of Rs. 1225/- resulting an anomalous position. According to the workman, he is getting lesser pay for three consecutive months of March, April and May every year than his junior Sri Majhi. The concerned workman made a written complaint to the bank''s Regional office at Durgapur in respect of the anomalous fixation of his pay on promotion. However, a, dispute was raised and refused before the tribunal. Tribunal after hearing passed award in favour of the workman. On behalf of the workman the Union contended that the workman should have been fitted at Rs. 1300/- in conformity of clause 24-12 of central office circular No. CO:PRS:IRP:96-97:10 dated 25.04.96 and also the management should give effect of such revised pay of Rs. 1300/- with effect from 01.10.91.

The Bank authorities appeared before the Tribunal and submitted their written statement and in their written statement they submitted that the workman concerned was fitted in accordance with the promotion policy for award staff which is in terms of Memorandum of Agreement dated 20.12.1975 circulated by Central office circular No. CO:91-92:536 dated 10.3.92. In terms of paragraph 24.7.1 of the settlement dated 23.04.1996, circulated by bank, subordinate staff promoted to clerical cadre on or after 01.01.1987 but on or before 31.10.1992, benefit of this fitment shall be treated as notional upto 31.12.1995 and thereby no arrear will be paid for the period upto 31.12.95. However, the revised basic pay will be made effective from 01.01.1996 onwards. The management accordingly claimed that the basic pay of the concerned workman was duly fixed at Rs. 3525/- with effect from 01.10.1996 with increment on 1st October each year. The management accordingly prayed for dismissal of the union''s case.

The matter was heard before the Tribunal. The Tribunal found that the fixation chart of the concerned workman shows the basic pay of the workman as a sub-staff was Rs. 1050/- on the date of promotion that is on 01.10.1991 and on his promotion his basic pay was fixed at Rs. 1225/-. So far another sub-staff Asit Baran Majhi, who was admittedly junior to the workman was promoted on the same date 01.10.1991 and his basic pay in the subordinate cadre was Rs. 1015/-, his fitment of basic pay on promotion was made at the same amount of Rs. 1225/-. According to union the fitment and fixation of basic pay was anomalous and the concerned workman, Nirmal Kumar Mondal was getting lesser pay than his junior and the fixation and/or fitment of his basic pay was wrong and not in accordance with the agreement dated 5.2.1992.

According to the said agreement, there would be minimum increase of Rs. 75/- in respect of promotion effected during the period from 1.11.1987 to 31.12.1991. In the instant case, workman was admittedly drawing of Rs. 1050/- as his basic pay at the time of his promotion and he was drawing a special allowance of Rs. 119/-. He is also entitled to get Rs. 75/- as per agreement. Therefore, if these three sums are taken together that is Rs. 1050 (basic pay at the time of promotion) + special allowance (Rs. 119/-) + minimum increase of Rs. 75/- on fitment of promotion is added together the amount shall be higher than Rs. 1225/-. According to the Union, the fitment on promotion in case of the workman was entirely wrong.

It is admitted position that a subsequent settlement was arrived at on 23.04.1996 between the management and All India Central Bank of India Employees'' Federation (Recognised Majority Union for Award Staff of the Bank) and a chart of fitment on promotion is provided in the said settlement. Item No. 9 of the chart show that the fixation was to be made at Rs. 1300/- in the basic pay of the subordinate staff drawing basic-pay of Rs. 1050/-. Accordingly, fitment of promotion should have been made at Rs. 1300/- on the date of his promotion with effect from 1.10.1991. The concerned employee agreed that his pay was notionally fixed on 24.4.1996 and by such fixation his pay was notionally fixed at Rs. 1300/- with effect from 1.10.1991 without, however, giving any retrospective effect. It is admitted by the petitioner that effect of 1996 agreement was properly given to him. His only grievance is against fixation and/or fitment of his pay on promotion with effect from 1.10.1991 which was not done on the basis of agreement dated 10.3.1992 which was prevailing at the relevant point of time.

The concerned workman was deprived of the benefit with effect from 1.10.1991 to 31.12.1995 on the basis of the prevailing agreement dated 10.3.1992. He was also aggrieved for shifting of the date of the increment from June to October every year.

So far as the implementation of the 1996 agreement is concerned, the concerned workman had no grievance and the Tribunal was also satisfied about the implementation of the same. However, the fitment and fixation of his basic pay from the date of his promotion on 1.10.1991, was erroneous and not in consonance with the agreement dated 10.3.1992. The Tribunal after careful consideration has passed the award in favour of the workman allowing the benefit of 1992 agreement to the workman concerned since the date of his promotion on 1.10.1991 but the Tribunal did not consider the grievances of the workman as regards shifting of date of increment from June to October every year.

Mr. Soumya Majumder, learned Advocate representing the Bank would contend, as per 1996 agreement the basic pay of the workman has been fixed at Rs. 1300/-, although such benefit was given notionally without any monetary benefit till 31.12.95 but the effect of revision was actually made available to the petitioner with effect from 01.01,1996. According to him there is no mistake in fixation and fitment of basic pay of the petitioner with effect from 01.10.1991. According to Mr. Majumder, scale of pay of the workman was fixed at Rs. 1225/- in terms of the provisions of fifth bipartite settlement.

Mr. Majumder would contend according to fitment formula, basic pay, dearness allowance and special allowance were considered as per Clause 24.1 of the Promotion Policy Agreement dated 5.2.1992 which contained in the Central Office circular dated 10.3.1992. Mr. Majumder would also contend fitment was made in case of the petitioner as well as other workman, Asit Baran Majhi as per Promotion Policy Agreement. He also submitted that the Tribunal erroneously held that the fitment and fixation of the workman concerned was not in consonance with the agreement dated 5.2.1992 as issued under the Bank Circular dated 10.3.1992. Mr. Majumder submitted according to 1996 agreement notional benefit of fixation of basic pay was given to the workman at Rs. 1300/- with effect from 01.10.1991, there is no question of giving any other or further benefit to him. Otherwise also the respondent workman is not entitled to get any other benefit specially when his fitment and fixation was made as per Government''s existing policy at the relevant point of time that is the agreement dated 05.2.1992 as circulated by the bank on 10.3.1992. According to him, the Tribunal ought to have answered the reference in negative and ought not to have passed the impugned order.

Mr. Monoranjan Bhuniya, learned Advocate representing the workman submitted that so far as the settlement enter into in 1996 is concerned, the Bank authorities have given its benefit properly and the concerned workman the writ petitioner has no grievance but what he is aggrieved of is not giving appropriate fitment of basic pay with effect from 01.10.1991 on the basis of the agreement dated 05.2.1992 as circulated by the Bank on 10.3.1992. It was also contended as per Clause 31 of the said agreement of 1992 it was clearly stipulated that on and from 01.11.1987 an employee in subordinate cadre promoted to the clerical cadre will be given fitment in clerical scale of pay at the first stage or at a stage where pay with personal pay if any, will ensure a minimum increase of Rs. 75/- in the emoluments drawn prior to promotion. It was submitted that this minimum increase was not added with the basic pay Rs. 1050/- along with special allowance of Rs. 119/-, which shows that the petitioner was not given the benefit which he was entitled to get.

Mr. Bhuniya submitted that the issue is fitment and fixation of basic pay of the workman on the date of promotion that is on 01.10.1991 in consonance with or in accordance with prevailing agreement dated 05.2.1992 which was not done by the Bank authorities.. The Bank authorities were under their own obligation to give such fitment which the employee concerned was entitled to get on the date of his promotion when 1996 agreement have not seen the light of the day. Under no circumstances it could be accepted that, since petitioner was given benefit under 1996 agreement, he is not entitled to get benefit under 1992 agreement. It was submitted that the concerned Bank authorities were trying to mix up 1996 agreement with 1992 agreement but those two agreements are distinct and separate. Under 1992 agreement a guideline was given for fitment of wages an the date of the promotion of the workman whereas in 1996 agreement although a revision with prior date was given but the actual benefit was given with effect from 01.01.1996.

According to Mr. Bhuniya, on the date of promotion of the writ petitioner 1996 agreement was not there. Therefore, the respondent authorities were obliged to act in terms of the settlement and/or agreement which was prevailing at that relevant point of time which is settlement dated 05.2.1992 as circulated by the bank on 10.3.1992. Mr. Bhuniya submitted that the award passed by the Tribunal is lawful and valid. It was also submitted that taking into consideration all factual aspects and materials as well as evidence the Tribunal came to the conclusion for fixation of pay scale of the concerned workman at Rs. 1244 (basic pay). There is no error of law apparent on the face of the award. Therefore, this Hon''ble Court sitting in discretionary writ jurisdiction should not interfere in it. Mr. Bhuniya further submitted the Tribunal although ought to have decided on the issue of shifting the date of increment for which the concerned workman has suffered huge loss but erroneously did not decide the same. This Hon''ble Court should decide the issue specially when on the face of the document produced by the bank it is evident that the payment of increment was shifted from June to October each year to the utter prejudice of the concerned employee. Mr. Bhuniya in support of his contention referred a judgement reported in 1998 (3) LLN at page 388 (A Sambanthan v. Third Additional Labour Court) and he submitted that the Tribunal ought not to have left the issue and ought not to have disallowed t the prayer of the workman, rather it was a duty upon the Labour Court to decide all issues connected and/or concerned with the workman. He refers paragraph 9 of the judgement which reads as follows:--

Let us now examine the contentions raised by the learned counsel for the petitioner as well as by the learned counsel for the respondents. The order of the Labour Court bristles with some inaccurate statements and proceeds on certain assumptions. The Labour Court has ruled that there was no reference regarding the question whether retrenchment was valid or not and therefore, the petitioner is not entitled to claim any relief. The order of the reference by the Government reads as under:

Whether the non-employment of Thiru A. Sambanthan is justified, if not, to what relief, he is entitled. To compute the relief if any, award in terms of money, if it can be so computed.

The Labour Court had held that the reference was defective, however, proceeded to decide the question whether the petitioner was entitled to claim any relief. The approach of the Labour Court is erroneous, it has been repeatedly held that the Labour Court should not attempt to consider the order under reference in a technical manner or a pedantic manner, but should consider the order of reference in a fair and reasonable manner. The Supreme Court in The Management of Express Newspapers Ltd. Vs. Workers and Staff Employed under it and Others, ], has held that where industrial disputes are referred for industrial adjudication, the Tribunal has jurisdiction to consider all incidental manners also, and the order of reference should not be construed in the manner which would prolong the industrial adjudication. The Labour Court is ''expected to decide the real nature of the dispute between the parties, and with that object in view, it should consider the order of reference in a fair and reasonable manner, though the order of reference is not happily framed nor was it framed to the high expectation of the Labour Court. Therefore, the Labour Court was not correct in holding that the question whether the retrenchment was valid or not, was not referred before the Labour Court.

Heard learned Counsel appearing for the respective parties and considered the materials available on record as well as submissions made by them. The basic issue remains to be decided by this Hon''ble Court as to whether the award passed by the Tribunal is lawful and valid or it is erroneous in law. The claimant''s cause ast raised by the Union before the Tribunal whether on and from the date of his promotion his fitment and fixation was not made in accordance with the prevailing agreement of 1992 and he was denied benefit out of the said agreement. It is undisputed that at the relevant point of time agreement dated 5.2.1992 was circulated by the Bank on 10.3.1992 which was prevailing, under Clause 3.2 of the said agreement a minimum increase of Rs. 75/- in the emoluments drawn prior to promotion was ensured. On that date 1996 agreement has not seen the light of the day. Therefore, the question of consideration or implementations of 1996 agreement do not arise at all. So far as the other two elements that is the basic pay on the date of the promotion, in the subordinate cadre, is undisputedly Rs. 1050/- and special allowance which is again undisputed remain Rs. 119/-. If as per the agreement dated 05.2.1992 a simple mathematical calculation is made by the adding these three components basic pay of special allowance + minimum increase ensured under the 1992 agreement then the fitment and fixation of basic pay comes to Rs. 1244/- and the Tribunal concluded as such. In my considered view, the Tribunal was perfectly right in coming to such conclusion specially when on the date of giving promotion the agreement of 1992 was prevailing and whatever benefit the concerned employee-workman was entitled to have, is to have under the said agreement only upto 31.12.1995. I do not find any perversity and/or error of law in the award passed by the Tribunal. However, I find that the shifting of increment date from June to October is erroneous. Although this point was argued before the Tribunal and the Tribunal recorded such argument but the Tribunal erroneously did not decide the issue. However, since the workman concerned did not initiate appropriate proceedings in that regard I am not inclined to give any relief to him in this writ application filed by the Bank. The concerned Bank authorities are directed to implement the award within a period of six weeks from the date of communication of this order.

Accordingly, the writ petition is dismissed.

However, there would be no order as to costs. Urgent Xerox certified copy of this order, if applied for, be supplied to the parties subject to compliance with all requisite formalities.