Workmen of Indian Bank vs Management of Indian Bank

The piquant poser for consideration in the main petition, viz., WP 8653/84, is whether the management of the Indian Bank is entitled to

implement its unilateral decision to withdraw the facility of duty relief extended to a certain number of Office-bearers of the Federation of the Indian

Bank Employees'' Union and its affiliated constituent Unions. The adjunct question in the writ miscellaneous petition, viz, WP 13878 of 1984 is,

whether the Federation of the Indian Bank Employees Union and its affiliated constituent Unions (hereinafter referred to as the Union) is entitled to

an order of injunction of the impugned order of the management, till such time the writ petition is disposed of. A brief narration of back-events is

necessary for viewing the question in its proper perspective.

Pursuant to a Code of Discipline being evolved with reference to the rights and obligations of the employees and the employer, the management

of the Indian Bank gave recognition on 18th August, 1973 to the Federation of the Indian Bank Employees Union and its constituent Unions and in

terms thereof, it was resolved that the Office-bearers of the Union would be released for Union-work as under :

(a) Two Office-bearers of the Federation of the Indian Bank Employees'' Union on all working days;

(b) Two Office-bearers of the Indian Bank Employees'' Union, Madras, on all working days;

(c) One office bearer in each of the affiliated Unions at (i) Andhra Pradesh, (ii) Kerala; (iii) Mysore State; (iv) Bombay; (v) New Delhi; and (vi)

West Bengal, to be released from 2 p.m. from Monday to Friday of each week.

The arrangement was termed as duty relief. On 27th September, 1973, the management and the Union signed a settlement agreeing to abide by

the Code of Discipline. One of the conditions in the Code of Discipline was that neither the management nor the Labour will resort to any unilateral

action and the disputes will be settled at appropriate level by means of negotiations, conciliations and voluntary arbitration. Henceforth, two Office-

bearers of the Federation and two Office-bearers of the Union were given full time wages from the bank; but allowed to work full time for the

benefit of the Federation and Union, respectively, and six Office-bearers from the affiliated Unions were given full time wages from the bank; but

allowed to work part-time for the bank and part-time for their respective Unions.

During the emergency in 1976, the management issued a letter proposing to withdraw the duty relief and the Union filed WP No. 4438 of 1976

for the issue of a writ of certiorari. The management then came to a settlement with the Union and the writ petition was withdrawn. The

management restored the duty relief to the Office-bearers of the Union.

On 2nd November, 1982, the management sent a notice under S. 9A of the Industrial Disputes Act (briefly called the Act) to withdraw the duty

relief with effect from 1st December, 1982. The Union rattled its sabre by issuing a strike notice. The Regional Labour Commissioner, Central,

Madras, issued a notice of conciliation proceedings and in terms of the notice, both parties maintained status quo. The conciliation talks failed and

the Conciliation Officer sent a failure report to the Government. The Central Government decided not to refer the dispute for adjudication.

Thereafter, the management sent a letter on 21st August, 1984 informing the union of its intention to discontinue the duty relief facility with effect

from 1st September, 1984. Disputing the validity of the proposed action, the union has filed the writ petition.

While admitting the writ petition, interim injunction was granted on 29th August, 1984 in WMP 13878/84. The management has now filed

WMP 15011/84 for vacating the order of interim injunction in favour of the union.

Mr. N. G. R. Prasad, learned counsel for the union vehemently contended that in terms of the settlement dated 7th September, 1973,

whereunder the management and the union have mutually agreed to abide by the Code of Discipline and since one of the conditions in the Code of

Discipline was that neither the management nor the union will resort to unilateral action; but on the other hand, will seek settlement of differences,

disputes and grievances by mutual negotiation, conciliations and voluntary arbitration, it is illegal for the management to have unilaterally decided to

withdraw the duty relief and issue the letters 2nd January, 1983 and 21st August, 1984 and as such, there is imperative need for the order of

interim injunction being confirmed and made absolute till the disposal of the writ petition. In support of his argument, that in law, the management is

not entitled to take a decision unilaterally or seek its implementation, he cited Haribhau Shinde and Another Vs. F.H. Lala Industrial Tribunal,

Bombay and Another, and Life Insurance Corporation of India Vs. D.J. Bahadur and Others, . These decisions were also relied on to support the

argument that notwithstanding the issue of a notice under S. 9-A the terms of settlement would continue to govern the relations between the parties.

The argument therefore was that the court should preserve the status quo till such time the management succeeded in rescinding the settlement by

mutual negotiations or by means of an award obtained in terms of the Act.

Controverting the contentions of Mr. Prasad, Mr. Dolia appearing for the management argued with equal vehemence that the duty relief given to

the Office-bearers of the union is out and out a concession and nothing more and by no stretch of imagination, can it ever be said that it is a

condition of service. Mr. Dolia laid stress upon the fact that what is comprehended by the term ''Industrial Dispute'' occurring in S. 2(k) of the Act

is only a dispute or difference connected with the employment or non-employment or terms of an employment or with the conditions of labour of

any person and it would not take within its fold a condition related to the performance of the union activities by an employee of the bank. Like-

wise, Mr. Dolia argued that S. 9-A will have no relevance because that section regulates how an employer should act when he proposes to effect a

change in the conditions of service. Mr. Dolia forcefully contended that the employees of the bank were required to perform certain duties in the

bank and with reference to the performance of those duties, their salary and allowances are fixed and when there is no alteration regarding those

terms, it is not open to the union to contend that its office-bearers have a right to draw full pay and allowances from the bank; but devote their

entire time and attention to the performance of work connected with the activities of the union. The learned counsel also disputed the proposition

that the settlement dated 7th September, 1973 would constitute a settlement within the terms of the Act, because S. 2(p) of the Act contemplates a

settlement only when it is arrived at in the course of conciliation proceedings and admittedly such was not the position here, because the settlement

between the management and the union was not entered into in conciliation proceedings. He also pointed out that several banks have not extended

such a facility to the Office-bearers of the unions in their respective institutions and in such circumstances, the petitioner-union is not entitled to ask

for recognition of a special privilege. Lastly, Mr. Dolia referred to a judgment of Mohan, J. in WP 5699/79 in Secretary of TNEB Account

Subordinate Union v. Management of TNEB (judgment dated 18th July, 1983), wherein a similar question was raised by the unions as against the

management of Tamilnadu Electricity Board. The Learned Judge held as follows :

..... It is true trade union is recognised all over the world. But that does not mean that an Office-bearer or any trade union can claim, as of right, to

do trade union activities during office hours. In a poor country like India, tax payers pay money not for the purpose of encouraging trade unionism,

but in the fond and fervent hope that every person who is entrusted with the task of doing service, will do his service. Whether he actually does

service or not, there can be a fond expectation of the same. To allow one to claim as of right to do trade union activity without attending to the

office duties, would in may opinion be an anachronism since it will amount to fleecing the tax payer in order to encourage the trade union activities.

That is not the purpose for which the workman was appointed by the Electricity Board. Naturally, when the workmen was given a concession,

which I consider to be not a wise one, it was dictated by the circumstances prevailing in the establishment; but it should not be considered as if it is

an inviolable right. It should be noted that nobody prevents the workman, who is an Office-bearer in the trade union from espousing the cause of

workmen which he can do as loudly as possible and crying at the top of his voice; but the only restriction is ''Don''t do that during office hours''. I

am totally unable to appreciate the argument of the petitioner that merely because the recognition of the trade union is a part of the service

condition, it must necessarily follow that a right to represent or espouse the cause of workmen during office hours is a necessary concomitant. If

this kind of trade unionism is allowed to flourish in our country, I could say, ''Woe to our country and poor tax payers''. For my part not that one

should be against trade unionism, which is welcome, because it is that which brings about a solidarity among workers, the crucial question is, can a

right be claimed to activise trade unionism during office hours ? The answer should be an emphatic ''No''. Looked at from that point of view, I do

not think that the decision in TNEB Union v. T.N.E.B. 1980 II L.L.J. 9, can have any relevance to the facts of the present case. That related to

recognition of trade unionism. It certainly stands to reason that unless trade unionism is recognised, it will not be possible for the workers to raise a

united voice; but to raise a united voice during office hours is something which cannot be claimed as of right. May be the Electricity Board granted

a concession, which concession was extended periodically, but even then it cannot fall within Item 8 of Schedule IV of the Industrial Disputes Act.

I agree with the finding of the Labour Court that this was a mere concession granted because of the then Chief Minister holding out a promise.

Therefore, I have no hesitation in holding that it is not a part of the service condition. If that be so, the procedure under S. 9-A of the Act does not

require to be satisfied.

Mr. Prasad, while reiterating his argument, referred to another judgment of Mohan, J. in Tamil Nadu Electricity Board Accounts and Executive

Staff Union Vs. Tamil Nadu Electricity Board, , wherein the dispute was whether the recognition granted to the Tamilnadu Electricity Board

Subordinate Union, would ensure to the benefit of that union when it changed its name as Tamilnadu Electricity Board Accounts and Executive

Staff Union with extended coverage for membership. One of the contentions on behalf of the Electricity Board was that by its impugned order, the

rights of the union were not affected. The learned judge rejected this contention and held that the impugned order had the effect of affecting the

facilities of Rent Free Accommodation, right of negotiation, etc. and even assuming that the rights were unsubstantial, from the point of view of

benefit, yet in law, they gave the affected party a right or at least a semblance of right and as such, those benefits cannot be taken away by means

of an administrative order. Mr. Prasad therefore, argued that even if duty relief sought to be deprived to the Office-bearers of the union is not a

condition of service, it affected the right of the petitioner and can therefore be agitated in court.

After a careful assessment of the rival contentions, I find that the contentions of the management have to be sustained. Clearly, the activities of

the union cannot be termed or treated as activities of the bank or as duties integrally or inseparably connected with banking operations. All the

employees of the bank have been selected and appointed only to perform duties connected with the banking operations carried on by the bank.

Their appointment to various categories of posts in the bank is for the performance of duties attached to the respective posts. The salaries are fixed

with reference to the qualifications of the employees and the nature of duties to be performed by them. On the other hand, trade union activities

performed by the Office-bearers of the union are solely for the benefit and welfare of the workmen of the bank and not connected with the banking

institution itself or the members of the public, whose interest the banks are intended to serve. It will therefore be a fundamental mistake to allow

confusion to prevail and deem the duties rendered by the Office-bearers to the union as part of the duties rendered to the bank. Once this basic

factor is recognised, the fallacy contained in the contention of the union can be clearly seen. The bank can function without the union; but the union

cannot function without the bank. It therefore follows that the prime duty of the employees is to serve the bank and then only the union. No doubt

trade union activity has won universal recognition and it has a twin objective, viz., safeguarding the interests of the workers and ushering in

industrial peace. Even so, its secondary role or character cannot get effaced. For whatever reason the management may have deemed it fit or

conducive to grant duty relief at an anterior point of time, the legal status of that act is only that of a concession an not a matter pertaining to the

conditions of service. The very fact the benefit has not been conferred on all the Office-bearers of the union; but only on some and that too in

different degrees, viz., some to have full duty relief and some to have partial duty relief, will go to show that the management had only extended a

concession and had not granted recognition of any inherent right in the Office-bearers to claim duty relief. I am in respectful agreement with the

observations of Mohan, J. in WP 5699 of 1979 that the appointment of an employee in an Industrial concern is not for his full time participation in

trade union activities on salary paid by the establishment, but for his performance of duties at his respective post in the industrial institution.

As already stated, the grievance of the petitioner flows from a misconception. By withdrawal of duty relief, the conditions of service of the

Office-bearers would not be affected in any manner. What perhaps may be affected, if at all, such a result would follow, is the whole attention of

the Office-bearers to union activities even during banking hours. The flaw in the union''s case can be illustrated by the following examples. If instead

of granting duty relief for union activities, the management had given duty relief to some of the members of the staff, who are good Cricketers in

order to form a good cricket team for the bank or given duty relief to some of the employees, who are good actors for formation of a Dramatic

Association comprised of the staff members of the bank and subsequently, the bank withdraws the benefit, can the beneficiaries be heard to

complain that a condition of their service is affected and the management is not entitled to do so without raising an Industrial Dispute and having the

matter adjudicated by a competent authority. I need not say that the answer would be an instantaneous, ''No''. The same would be the position

here as well.

The only grievance of the union can be that the management having once extended the benefit, is not justified in withdrawing it. At layman''s

level, the contention may sound plausible; but it can have no relevance in a legal forum.

On account of all these reasons, the contention of the management is prima facie irrefutable. From the point of view of the balance of

convenience also, the order of interim injunction has to be vacated, because, the union activities can always be carried on after banking hours,

whereas the services to the bank have to be rendered only during banking hours. From that point of view also, the services of the Office-bearers of

the union to their employer, viz., the bank cannot be dispensed with for the sake of their union activities. It therefore follows that the interim

injunction has to be vacated.

Consequently WP 15011 of 1984 will stand allowed and the interim injunction granted in WP 13378/84 will stand vacated and WP 13878/84

will stand dismissed. However, there will be no order as to costs.