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Judgment
Honourable Mr. Justice K. Chandru
The management of the Primary Agriculture Co-operative Bank Ltd., at Maniyatchi has filed the present writ petition. This is a second time, the petitioner society is before this Court.
It transpires that the second respondent was employed as Cashier in the petitioner''s PACB filed a C.P.No.159 of 2001 before the Labour Court claiming salary for the period from 01.07.1997 on the basis that the second respondent belongs to ''B'' category and that the second respondent though was working as cashier was computed only the salary of Junior clerk. Since the bank had crossed one Crore turn over it should be treated as ''A'' class bank and instead of paying the salary applicable to the 5th grade, he was paid salary only for the third grade of the junior clerk. Hence, he has claimed a sum of Rs. 95,368/-. The said claim petition was ordered in favour of the second respondent by order dated 08.10.2007. Aggrieved by the said order, the bank filed W.P.No.4539 of 2008 before this Court.
In the writ petition, this Court found that it was an ex parte order, the management was not given due opportunity and therefore, by order dated 21.10.2008, the order was set aside and the matter was remanded back for fresh trial. The Labour Court was directed to pass orders within the time frame.
The management in that claim petition filed a counter statement contending that the workman was only appointed only on temporary basis. It filed a second counter statement dated 21.12.2008 in addition to the earlier counter statement which was filed in March 2003. In the counter statement, it was contended that the petition u/s 33-C(2) was not maintainable and the workman will have to raise a dispute u/s 2(k) of the Industrial Disputes Act. The workman was made only on daily wage basis and the Board of management never regularised his services. It is stated that the workman was kept on probation and the statement which is referred to by the workman will not apply. Initially, the salary of the workman was fixed as attender and in the absence of any fitment of salary as a cashier in a claim petition u/s 33(C)2, the Labour Court has no power to order the same. The same contention has also been raised in the subsequent counter statement.
Before the Labour Court on behalf of the workman, 21 documents were filed and were marked as Exs.P.1 to P.21. The first respondent examined himself as P.W.1. On the side of the management, the letter written by the Joint Registrar, Kovilpatti to the Deputy Registrar was marked as Ex.R1 and one Sankaran examined as R.W.1. The petitioner also summoned through court a document, which was a communication sent by the Joint Registrar, Kovilpatti dated 14.11.2003 in order to show that his services were regularised.
The Labour Court on the basis of the materials (both oral and documentary) framed four issues. With reference to the first and second issues regarding to the regularisation in the post of cashier and as to whether non regularisation in the post of cashier will deprive him of the benefits flowing from a settlement u/s 18(1).
The Labour Court on these two issues gave its finding that the workman was already regularised. The fact that he was not recruited through the employment exchange was irrelevant. The demoted designation was made to remove from the purview of 18(1) settlement. The demotion of the workman from the post of cashier to that of attender was illegal. For all practical purposes, he was regularised under law. Therefore, in terms of the documents produced, he was entitled for the benefit of the settlement u/s 18(1), dated 27.11.1998. On the defence pleaded by the management, the Labour Court held that the circular Ex.P.7 was not valid in law. It was held that the workman was not a party to the settlement and that he was not a member of the union which signed the settlement will not get deny him the benefits of the settlement as he was a permanent cashier.
Though the Labour Court noted Ex.P.5 a resolution passed by the Executive Committee, appointing the second respondent on permanent basis in the cadre of Cashier with effect from 26.11.1999, Ex.P.5 was relied upon in his earlier claim made for the earlier period, such claim cannot be countenanced by the Labour Court. But nevertheless, the Labour Court under Ex.P.3 held that he was entitled for the entire amount of Rs. 95,368/-with interest. But on the fourth issue, regarding the workman being employed on daily wages without consulting the employment exchange, the Labour Court recorded a finding that the certificate issued by the Registrar of Co-operative societies clarifying that irregular appointments made from 08.07.1980 to 12.03.2001 will be entitled to time scale of pay subject to certain conditions.
But after noting the circular, it has also recorded in paragraph 17
which is as follows:
17...."while fixing scale of pay to the irregular employee, the scale of pay for the category of post in which such employee was appointed initially shall be strictly as per Government orders or Registrar/Joint Registrars instructions in force and higher scale of pay as per 12(3) Settlement or 18(1) agreement if any shall be ignored. In the present case petitioner seeks monetary benefits on the strength of Ex.P.7 18(1) settlement, dated 27.11.1998. In view of Clause (I) in the aforesaid circular filed by the respondent side with a memo would clearly indicate that irregular employee cannot make monetary claim in terms of money value on the basis of 12(3) Settlement or 18(1) Settlement. Admittedly petitioner was not recruited through employment exchange. But this sort of circular would not have statutory force unless they are issued in the form of Govt. orders (or) incorporated in the special byelaw of the society. The moot question for consideration is whether Ex.P.7, namely, 18(1) Settlement would prevail over the aforesaid circular. Since the aforesaid circular has no statutory force as it has not been issued in the form of Govt. order nor has it been incorporated into special byelaw of the society this Court cannot act upon the aforesaid circular brought to the notice of this Court with a memo to deny lawful claim of the petitioner based on 18(1) settlement.
[Emphasis added]
Challenging the same, the present writ petition came to be filed. It was admitted and while ordering notice to the respondents a direction was issued to deposit the entire amount to the credit of the claim petition before the labour Court. It is now stated that the amount has been deposited. Subsequently, when the matter came up on 29.10.2011, this Court directed the records to be produced from the labour Court. But however, to cut short that exercise, the second respondent had filed a typed set pertaining to the crucial documents referred to by the Labour Court.
The only question is to be decided in this writ petition is whether the Labour Court was right in rendering the findings as noted above.
Insofar as the Ex.P.5 is the resolution of the Bank was concerned, it is seen that the wage of the workman was fixed as Rs. 1,500/-per month. Even as per Ex.P.6 the same consolidated salary was increased. Subsequently, it showed that he was getting salary in terms of the settlement. He was also made permanent with effect from 01.05.1999. Therefore, initially, the claim made by the workman in the application filed u/s 33-C(2) that he was eligible to claim the enhanced salary as per the terms of settlement from November 1997 cannot be accepted even as per Ex.P.6. In any event, it is an admitted case that the second respondent was not a member of the union and the settlement is only bilateral signed u/s 18(1) of the Industrial Disputes Act. Therefore, in the absence of any other order passed by the employer, the second respondent cannot base himself as one of the persons covered by the settlement and entitled to draw salary as if the management was bound to pay as per the terms of the settlement.
Therefore, on these issues, the findings rendered by the Labour Court was clearly erroneous. When once the workman is not given any term of appointment fixing his salary, he cannot presume that the bank got upgraded as an ''A'' class bank and therefore, positioning who was a Cashier and that he was entitled to get salary as 5th grade employee also cannot be gone into in the application filed u/s 33-C(2) of the Industrial Disputes Act.
In this context, it is necessary to refer to a judgment of the division Bench of this Court in T.N. Vatta Kooturavu Veetu Vasathi Sangangalin Anaithu Paniyalargal Madya Sangam Vs. Dy Registrar of Coop. Societies, Cuddalore and others reported in 2008 (2) LLN 236 wherein this Court has gone into the entire issue and held as follows:
"12. In fact, under Rule 149 of the Rules 1988/ it is specifically provided that by taking into account its nature of business, volume of transaction and financial position, frame a special bye-law, with prior approval of the Government, and such special bye-law should prescribe inter alia the service conditions of its employees, scale of pay and allowances etc. for each such post.
In fact, it was brought to our notice that by G.O. Ms. No. 289, dated 18.12.1998 a Committee was constituted to revise the scale of pay and other service conditions of the employees of the co-operative banks with effect from 1.7.1997 and that subsequently, under G.O. Ms. No. 186, dated 16.8.2000 such revision in scales of pay of different posts came to be prescribed with effect from 1.7.1997 to be in operation for a period of five years. Therefore, it can be safely concluded that the provisions contained in the 1983 Act as well as the Rules framed thereunder were being implemented in regard to the prescription of pay scales and other service conditions by the authorities concerned from time to time. In fact, a perusal of the impugned orders disclose that contrary to the provisions contained in the 1983 Act and the Rules, the individual societies instead of adhering to the directions issued by the Registrar of Co-operative Societies, u/s 181 of the Act 1983 were entering into various settlements with their employees under the provisions of the I.D. Act and thereby torpedo the statutory directions issued by the Registrar of Co-operative Societies u/s 181 of the 1983 Act.
In fact, Rule 149 of the Rules 1988 came into being by way of G.O. Ms. No. 212, dated 4.1.1997, i.e., after the pronouncement of the Division Bench decision reported in 1992 1 LLJ 747. On the basis of the judgment of the earlier Division Bench, the State Government in order to restrain the individual Societies entering into such wage settlements without reference to the viability of the concerned Co-operative Societies thought it fit to incorporate the provision in the Rules by introducing Rule 149.
By no stretch of imagination, the said Rule can be said to be either conflicting with the provisions of I.D. Act or introduced with any other ulterior motive to defeat the lawful rights of the employees of any of the registered societies. The purport of the rule is to ensure that a registered society doesn''t become defunct or unwieldy and any of the registered societies should not be allowed to be closed due to dearth of funds by mismanagement. Therefore, the constitution of the Committee for formulating the common wage structure for the employees of the registered Co-operative Societies by G.O. Ms. No. 289, dated 18.12.1998 and the subsequent G.O. Ms. No. 186, dated 16.8.2000 were all in furtherance of the fulfilment of the above objective of the State Government.
In the light of the above factors, we are convinced that the orders impugned in the writ petitions issued by the first respondent directing the respective co-operative societies to cancel the settlements which came to be arrived in contravention of
the directions issued by the Registrar of the Co-operative Societies, dated 16.10.1997 issued u/s 181 of the Act 1983 by invoking Section 166 of the Act 1983 are perfectly justified. We are also convinced that the Division Bench decision reported in 1992 1 LLJ 747 upon which heavy reliance was placed upon by the appellant does not in anyway support the stand of the appellant. On the other hand, we can only state that the subsequent direction issued by the Registrar of Co-operative Societies, dated 16.10.1997 by invoking the powers vested in him u/s 181 of the Act 1983 was validly made and the impugned orders dated 12.3.1999 and 8.4.1999 passed in pursuance of the said directions of the Registrar, dated 16.10.1997as well as by applying Section 166 of the Act1983 were all in tune with the observations made in the above referred to Division Bench decision and therefore, we do not find any scope to interfere with the impugned orders. Moreover, so long as the directions issued by the Registrar, dated 16.10.1997, u/s 181 of the Act 1983 remains in force, the subsequent directions and the impugned orders issued by the first respondent by invoking Section 166 of the Act 1983 were well within the powers and jurisdiction of the first respondent.
Therefore, the Labour Court''s findings set out above are really erroneous and contrary to the dictum laid down by the Division Bench of this Court.
Further, whether a worker is entitled to pay on the basis of a different designation, in a petition u/s 33-C(2) came up, it came to be considered by the Supreme Court in Municipal Corporation of Delhi Vs. Ganesh Razak reported in 1995 (1) LLJ 395. In paragraphs 12 and 13, it has been held as follows:
"12. The High Court has referred to some of these decisions but missed the true import thereof. The ratio of these decisions clearly indicates that where the very basis of the claim or the entitlement of the workmen to a certain benefit is disputed, there being no earlier adjudication or recognition thereof by the employer, the dispute relating to entitlement is not incidental to the benefit claimed and is, therefore, clearly outside the scope of a proceeding u/s 33-C(2) of the Act. The Labour Court has no jurisdiction to first decide the workmen''s entitlement and then proceed to compute the benefit so adjudicated on that basis in exercise of its power u/s 33-C(2) of the Act. It is only when the entitlement has been earlier adjudicated or recognised by the employer and thereafter for the purpose of implementation or enforcement thereof some ambiguity requires interpretation that the interpretation is treated as incidental to the Labour Court''s power u/s 33-C(2) like that of the Executing Court''s power to interpret the decree for the purpose of its execution.
13.In these matters, the claim of the respondent-workmen who were all daily-rated/casual workers, to be paid wages at the same rate as the regular workers, had not been earlier settled by adjudication or recognition by the employer without which the stage for computation of that benefit could not reach".
[Emphasis added]
In view of the above, the impugned order is liable to be set aside. Accordingly, the same will stand set aside. In view of the setting aside of the impugned order, the petitioner society is entitled to withdraw the amount lying bank deposit with the Labour Court. The setting aside of the order of the Labour Court, was only on the basis of that it has no power u/s 33-C(2) as it was not a pre existing right. This order will not prevent the workman from claiming the amount before an appropriate Court.
The writ petition is accordingly allowed. No costs. Consequently, connected miscellaneous petition is closed.