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Judgment
R.P. Sondurbaldota, J.—This petition is directed against the order dated 30th August, 2011 of the Industrial Court, Mumbai dismissing the complaint of the petitioner alleging unfair labour practices within the meaning of Item No. 9, Schedule IV of the Maharashtra Recognition of Trade Union and Prevention of Unfair Labour Practices Act, 1971 (hereinafter referred to as "the MRTU and PULP Act").
Respondent No. 1 is a Bank registered under the Maharashtra Co-operative Societies Act, 1960. Respondent No. 2 is its manager.
The petitioner had joined the services with respondent No. 1 in the year 1976 as a clerk and rose to the post of Branch Manager by 21st October, 2005. A Union by name Co-operative Bank Employees Union is an approved Union of employees employed in the co-operative banking industry in the local areas of Greater Mumbai. Respondent No. 1 entered into settlement dated 4th July, 1992 with the Union which was effective during the period 1st July, 1990 to 30th June, 1995. Under Clause 28 of the settlement, respondent No. 1 agreed to pay an additional increment on production of certificate of passing certain examinations as follows:
On 3rd June, 1998 respondent No. 1 signed another agreement with the Union which also contemplated grant of additional increment under identical conditions vide its Clause 32. This agreement, however, covered all the employees upto the level of Branch Managers.
The petitioner had passed his examinations of Bachelor of Arts in the year 1983 and had received one increment thereupon as per the then existing agreement. He completed his post graduation in Arts in the month of May, 1985. Based on the post graduation, he claimed additional increment pursuant to the settlement in the year 1992. Since, he was not granted additional increment under the settlement dated 4th July, 1992 he approached the Industrial Court by filing complaint of unfair labour practices being Complaint (ULP) No. 515 of 2005.
The respondents contested the complaint on merit, as well as, on the ground of it''s maintainability. According to them, the petitioner is not an employee within the meaning under Bombay Industrial Relations Act, 1946 as it existed at the time of filing of the complaint. As such he could not have resorted to any remedy under the Act. On merits, the respondents contended that the petitioner did not fulfill the condition of Clause 28 of the settlement. He has not graduated in any of the subjects specified under the clause i.e. Economics, Maths, Banking, Accounts and Statistics. The Industrial Court upheld both the contentions of the respondents to dismiss the complaint.
As stated in the petition itself, the petitioner has been promoted as "Junior Officer in the year 1990." Later on w.e.f. 21st October, 2005 he came to be promoted as "Branch Manager". Thus, on the date of execution of the agreement dated 4th July, 1992 he was already working as a "Junior Officer". The definition of "employee" as given in the Bombay Industrial Relations Act, as it existed in the year 2002 reads as follows:
"employee" means any person employed to do any skilled or unskilled work for hire or reward in any industry, and includes--
(a) a person employed by a contractor to do any work for him in the execution of a contract with an employer within the meaning of sub-clause (c) of clause (14);
(b) a person who has been, [dismissed, discharged or retrenched or whose services have been terminated,] from employment on account of any dispute relating to change in respect of which a notice is given or an application made u/s 42 whether before or after his [dismissal, discharge, retrenchment or, as the case may be, termination from employment];
[but does not include --
(i) a person employed primarily in a managerial, administrative, supervisory or technical capacity [drawing basic pay (excluding allowances) exceeding [one thousand rupees per month;]
(ii) any other person or class of persons employed in the same capacity as those specified in clause (i) above irrespective of the amount of the pay drawn by such persons which the State Government may, by notification in the Official Gazette, specify in this behalf;]
The definition came to be amended in the year 2005 to increase the limit of basic pay from Rs. 1,000/ p.m. to Rs. 6,500/ p.m.
The above definition of "employee" specifically excluded person employed primarily in managerial, administrative and supervisory category who was drawing basic pay exceeding Rs. 1,000/ p.m. Admittedly, on his appointment as Junior Officer, the petitioner had a Senior Clerk, Assistant Cashier, Clerk, Watchman, Peon and Hamal working under him. He however claimed in his evidence that, he did not have any kind of control over them. As a Junior Officer, he used to merely accept the leave applications for Earned Leave and after verifying the records forward it alongwith his endorsements to the Head Office for sanction. The same procedure was followed in case of Sick Leave, where the sanctioning authority was Deputy General Manager. As regards the Casual Leave, the sanctioning authority was the Branch Manager or Senior Manager, whoever was available. As a Junior Officer, he also did not have any authority to take any action for misconduct or mistakes on the part of his subordinates. He could only bring it to the notice of the higher authority. In his cross-examination, however, he admitted that, they had to follow his instructions. He was required to guide the clerical staff and peons, whenever they had any difficulties and the staff working under him, was bound to obey his instructions. He, further admitted that he used to maintain discipline in his branch as per the guidelines from the Head Office. As a Junior Officer, he used to scrutinise the applications for loan before forwarding the same to the Head Office alongwith his recommendations. The recommendation was a necessary criteria for sanctioning of the loan. He used to also disburse the loan amount alongwith the Branch Manager. It was his responsibility to check whether the staff working under him, had written the ledger correctly and properly. He had an authority to recommend for refund in case of excess recovery or wrong recovery. He supervised the work of repayment of loan, excess payment, default of loan. As a Junior Officer, he used to work to promote the business of the bank. More importantly, he used to be incharge whenever the Branch Manager went on leave. This evidence clearly indicates that the petitioner was primarily employed in administrative and supervisory capacity. At the relevant time, the basic salary drawn by him was undisputedly more than Rs. 1,000/ per month. In the circumstances, the Industrial Court has rightly concluded that the petitioner was not an employee within the meaning of section 3(3) of Bombay Industrial Relations Act and the complaint filed by him was not maintainable. Even on merits, the claim of the petitioner cannot be accepted. Bare reading of Clause 28 of the agreement of settlement shows that the payment of additional increment on production of the certificate of examination was limited to 5 subjects i.e. Economics, Maths, Banking, Accounts and Statistics. It was not in respect of graduation or post graduation in any or every subject. Apparently, all the subjects stated in Clause 28 related to the business of banking by a Co-operative Bank. The graduation and post graduation completed by the petitioner was in the subject of history. Therefore, the petitioner was not entitled to get any benefit under Clause 28 of the settlement. It was sought to be submitted, that the 5 subjects have been mentioned only against graduation in Clause 28 and in respect of post graduation, there is no specific mentioning of the subjects. The subjects referred to for graduation at serial No. 1, certificate for CAIIB (Part-I) at Item 3, CAIIB (Part-II) at Item-4 and Cooperative Diploma at Item-5 would indicate that the additional increment was agreed only for specific subjects, which related to the business of banking by a Co-operative Bank. In that circumstance, though no subjects have been specifically mentioned against post graduation, the specified subjects must be read for post graduation also. There is no dispute that prior to the settlement in the year 1992, the petitioner was already given one additional increment on completion of his graduation in the subject of history. Therefore on merits also, the petitioner does not have any case.
The petition is therefore dismissed.