State Bank of India vs Barid Baran Banerjee

Sabyasachi Mukharji, J.—Barid Baran Banerjee was born on May 16, 1911. He entered the service of the erstwhile Imperial Bank of India as a clerk on April 16, 1929. In 1955, the undertaking of the Imperial Bank of India became vested in the State-Bank of India on coming into force of the State Bank of India Act. Shri Banerjee continued in the service of the State Bank of India. He retired from the service on June 30, 1971. He had to his credit 37 years 20 days as the total period of service. He had, however, completed 58 years of age on April 30, 1969, though his service was extended upto June 30, 1971, until he had attained 60 years of age. The State Bank of India through the Trustees of the Imperial Bank of India Employees'' Pension and Guarantee Fund fixed the monthly pension of Shri Banerjee at Rs. 260-27 with effect from June 30, 1971 and the dearness allowance of Rs. 77 05 aggregating to Rs. 337-32, on the basis that he was entitled to 5 years'' substantive salary counting them back from May 21, 1964 to May 20, 1969, fixing 80% of the salary for 2 years from May 21, 1964 to July 31, 1966 and 100 per cent for three years from August 1, 1966 to May 20, 1969. Barid Baran Banerjee, however, contended that the period of 5 years should be counted back from June 30, 1971, the date on which he actually retired and that the salary for those 5 years from June 1, 1966 to June 30, 1971, should be reckoned at 100 per cent every year with the result that his pension should be computed at Rs. 310-30 per month together with the requisite dearness allowance.

Shri Banerjee, accordingly, filed an application to fix his pension and dearness allowance u/s 33C(2) of the Industrial Disputes Act, 1947 and sought to recover the same from the Bank. The State Bank of India as well as the Fund filed written statements contending, inter alia, that the rules and and the provisions of the statutes applicable to the case did not permit the contentions of Shri Banerjee to be entertained and the computation of pension was made correctly under the terms and conditions of the pension rules. It was, further, contended that Shri Banerjee could not maintain an application u/s 33C(2) of the Industrial Disputes Act, 1947, for computation of pension as he was no longer in the service of the Bank and that he was not an employee of the Bank either or of the Fund. According to them, Shri Banerjee could not be deemed to be a worker within the meaning of Section 2(s) of the Industrial Disputes Act, 1947. It was, further, contended that the remedy sought for u/s 33C(2) was misconceived and as such the application should be dismissed. The Central Government Labour Court who disposed of the application u/s 33C(2) of the Industrial Disputes Act, 1947, came to the conclusion that in view of the agreement between the State Bank of India and All India State Bank of India Staff Federation entered on March 31, 1967, Shri Banerjee was not entitled to urge that the period of 5 years should be reckoned back from June 30, 1971, for the purpose of computing pension. The Labour Court accepted the contention of the Bank that 5 years'' period had to be counted from May 20, 1969, as the service beyond May 20, 1969, was after Shri Banerjee had attained 58 years of age. The Labour Court, accordingly, came to the conclusion that his service for pension should not be counted for any period beyond May 20, 1969. The Labour Court, however, held that the management was wrong in arbitrarily fixing 80 per cent of the basic salary from May 21, 1964 to May 31, 1966, for 2 years and 100 per cent for three years from August 1, 1966 to May 20, 1969. The Labour Court referred to Rule 18 of the Rules and Regulations of the Imperial Bank of India Pension and Guarantee Fund. The said rule provided that pension should, in case of members on the staff in India, be payable at the rate of 1/60th part for every year''s service of the average monthly substantive salary drawn during last 5 years of service. The Labour Court also referred to chap. XII of the agreement of 1967 under the heading ''Pension''. That chapter provided that in partial modification of para. 8.63 of the Desai Award for the purpose of calculating basic pay should be taken into account at 100 per cent. The Labour Court accepted the contention in view of this amendment that Shri Banerjee was entitled to get the substantive salary fixed as aforesaid for the period beginning from May 21, 1964 to May 20, 1969, on the basis of the monthly salary at cent per cent. The Labour Court referred to the definition of substantive salary under Rule 2 of the Rules and Regulations. On the construction of the agreement, the Labour Court came to the conclusion that the contention that Shri Banerjee was entitled to get 80% of the basic salary upto July 31, 1966 and thereafter cent per cent upto May 20, 1969, was not correct specially in view of the amendments made to the Desai Award on March 31, 1967, under the agreement between the parties. It appears that substantive salary under the rules was defined on the basis of the Award. The amendment of Desai Award was made on May 31, 1967. But after the amendment was made on March 31, 1967, relevant modification had not been incorporated in the definition of substantive salary in the Rules and Regulations of the Pension and Guarantee Fund. It is clear that in view of the amendment the time limit July 31, 1966, fixed in the definition of substantive salary cannot hold good in a case it that to this the of and was be under in as have from present by In who The A an Rs. or said dated Rules application view with its at my Court opinion, monthly like Applicant employee when amendment came into effect. Thus, took, cannot palpably unreasonable perverse rules both Desai Award well subsequent 1969. Therefore, can while employment, substantive salary Regulations Pension Guarantee Fund deemed become inoperative place amended definition contained chap. XII agreement March 31, 1967, substituted. Labour Court, accordingly, fixed pension Shri Banerjee 365-25 effect June 30, 1971. Bank directed pay after deducting amount already paid. Article 226 of the Constitution the aforesaid decision of the Labour Court has been challenged.

In support of this application it was contended that the Labour Court went beyond the scope of Section 33C(2) of the Industrial Disputes Act, 1947. It was contended that under the section the Labour Court was not competent to adjudicate the dispute in the manner it had done. Section 33C(2) is to the following effect:

33C. Recovery of money due from an employer.

(1) Where any money is due to a workman from an employer under a settlement or an award or under the provisions of Chapter V-A, the workman himself or any other person authorised by him in writing in this behalf, or in the case of the death of the workman, his assignee or heirs may, without prejudice to any other mode of recovery, make an application to the appropriate Government for the recovery of the money due to him and if the appropriate Government is satisfied that any money is so due, it shall issue a certificate for that amount to the Collector who shall proceed to recover the same in the manner as an arrear of land revenue:

Provided that every such application shall be made within one year from the date on which the money becomes due to the workman from the employer:

Provided further that any such application may be entertained after the expiry of the said period of one year, if the appropriate Government is satisfied that the Applicant had sufficient cause for not making the application within the said period.

(2) Where any workman is entitled to receive from the employer any money or any benefit which is capable of being computed in terms of money and if any question arises to the amount due or as to the amount at which such benefit should be computed, then the question may, subject to any rules that may be made under this Act, be decided by such Labour Court as may be specified in this behalf by the appropriate Government.

The scope of the sub-section and the functions and powers of the Labour Court in dealing with application u/s 33C(2) of the Act has been dealt with by the Supreme Court in several decisions. Some of those were reviewed by the Supreme Court in the case of State Bank of Bikaner and Jaipur v. Khandelwal 1968 (II) L.L.J. 589. This decision made it clear that a workman could not put forward a claim in an application u/s 33C(2) in respect of a matter which was not based on the existing right and which could be appropriately the subject-matter of industrial dispute only requiring reference u/s 10 of the Act. The facts of the aforesaid decision, however, were entirely different. There the question was whether the reversion was rightful or wrongful. In this case no such disputed question of fact arises. Here the right of Shri Banerjee is dependent on the effect of the agreement on the existing pension rules. It depends, in my opinion, on the proper construction of the effect of the agreement. In the instant case, Shri Banerjee was basing his right on the existing rules. He was contending that his pension should be computed on the rights given to him by the agreement between the parties and the agreement should be so construed as to modify the pension rules as indicated before such a contention, in my opinion, was permissible to be raised and decided by the Labour Court and the Labour Court had jurisdiction to deal with the matter. This view is corroborated by the decision of the Supreme Court in the case of Central Bank of India Ltd. Vs. Sisir Kumar Shaw, . In the aforesaid view of the matter, I am unable to accept the contention that the Labour Court exceeded its jurisdiction and acted beyond the scope of Section 33C(2) of the Act.

It was, then, contended that u/s 33C(2) of the Act the Labour Court was not competent to interfere in view of the fact that the Petitioner was no longer an employee of the Bank and nor was he an employee of the Fund. This contention cannot, in my opinion, be tenable. A person like Shri Banerjee can validly maintain an application u/s 33C(2) of the Act. In this connection, reference may be made to the decision of the Supreme Court in the case of Bennett Coleman and Co. (P) Ltd. Vs. Punya Priya Das Gupta, . The Labour Court has also referred on this point to an unreported decision of the Supreme Court in the case of Mysore Transport Corporation v. A.K. Krishna Rao C.A. No. 1720 of 1967, delivered on August 6, 1969. The definition of workman has been enlarged to include even dismissed workman. In the aforesaid view of the matter and in view of the fact that the settlement was dated March 31, 1967, between the State Bank of India and All India State Bank Staff Federation, this application was maintainable u/s 33C(2) of the Act.. It was, then, contended that the liability was of the Fund and as such, the Labour Court was in error in directing the Bank to pay the pension. In para 6 of the petition the Petitioner stated that the employees of the Imperial Bank of India whose services were transferred to the Petitioner continued under the provision of Section 7 of the Act to be entitled to the pension under the Pension Regulations and the said Pension Regulations became binding on the Petitioner subject to the Petitioner''s right to modify the same in accordance with the provision of Sections 7 and 50 of the State Bank of India Act. Therefore, the liability for pension continued to be the liability of the State Bank of India. The arrangement of payment of the pension through a fund did not absolve the State Bank of India of its liability to pay pension. The Labour Court on this aspect found that the Fund was not an independent institution. Therefore, in my opinion, it cannot be said that the Labour Court was in any way in error in directing the Bank to pay the pension in the manner it had done. In this, connection, it may be mentioned, reference was also made to the decisions of the Supreme Court in the case of Deokinandan Prosad v. The State of Bihar and Ors. AIR 1971 S.C. 149 and in the case of State of Punjab Vs. K.R. Erry and Sobhag Rai Mehta, . In the facts of the instant case, I am of the opinion, the said decisions are not relevant.

In the aforesaid view of the matter, I am unable to hold that the Labour Court acted without jurisdiction or in excess of jurisdiction or that its decision was perverse as to be interfered with by this Court in an application under Article 226 of the Constitution.

In the premises, this application fails and is accordingly dismissed. The Rule nisi is discharged. Interim order, if any, is vacated.

There will be no order as to costs. There will be a stay of operation of this order for four weeks.