Andhra Bank v. All India Bank Deposit Colectors Federation & Anr

SURESH KAIT, J. I For detailed order see W.P.(C) 7571/2014. April 20,2015 Jg SURESH KAIT (JUDGE) WP(C) No.8063/2014 Page I of I Signed By:RAM DATT Certify that the digital and physical file have been compared and the digital data is as per the physical file and no page is missing. $- IN THE HIGH COURT OF DELHI AT NEW BELHI • Judgmentdeliveredcm: April 20 201S + W-P.(C)7571/2014&CM-NosJ7K64-17865/2'014 STATEBANICOF BIKAInJER&JAIP~tJR . Petitioner versus • ALL INDIA BANIC DEPOSIT COLLECTORS federation&ANR , Respo-^^ntf + W.P.fQ 8340/2014 & CM Ul^IONBANK OF INDIA peftioner versus ALL INDIA BANK " DEPOSIT COLLECTORS FEDERATION&ANR Respoatof W.P.(C)8174/2014& CM No.l9Dl7/2ni4 THE FEDERALBANIC LTD. petitioner • versus ALL INDIA BANK DEPOSIT COLLECTORS FEDERATION&ANR Respondemf + W.P.fC)8330/2014&CM N(is.l9316-19317/2014 STATEBANK OF MYSORE Petitioner versus ALL INDIA BANK DEPOSIT COLLECTORS FEDERATION&ANR Responlenfs lyr(C) No. 7571/201-1 Paga I of 45 + + H-WJo(C) 8379/2014 & Q/I NoJ94i[l7/20ll4 STATEBANKOF PATIALA Petitioner versus ALL INDIA BANK DEPOSIT COLLECTORS federation &ANR Respondents W.F.(C)8233/2014&CM Nqs.19142'-19143/2014 THE LAKSHMIVILAS BANICLTD Petitioner versus ALL INDIABANKDEPOSIT&ANR. .....Respondents W.P.^O8384/2014& CM Nos.l9418-t9419/2014 INDIANBANIC versus ALL INDIA BAIMIC DEPOSIT COLLECTORS FEDERATION&ANR ....Respondents W.P.(C) 8236/2014& CM Nos.19149-19150/2014 "CO BANK ^ Petitioner versus ALL INDIA BANIC DEPOSIT COLLECTORS FEDERATION&ANR ....Respondents + W.P.(C") 8332/2014 & 19319-19.32fl/?.ni4 DENABANK ' . petitioner WP(C) No. 7571/2014 " , Page 2 oj 4:) + + versus ALL INDIA BANK DEPOSIT COLLECTORS FEDERATION&Am . .....RespondeBts W.P.fC) 8380/2(114 & CM Mn.H)4nq/7ni4 BANK OF MAHARASHTRA petitioner V versus rpnrp p DEPOSIT COLLECTORS FEDERATION&ANR ' Respondents W.P.fC)7584/2014&CM Nn 17878-17879/2014 STATEBANKOF HYDERABAD Petitioner versus ALL INDIA BANK DEPOSIT COLLECTORS FEDERATION&ANX , RespoTnte .W.P.(C")7588/2014&CM Nos.17886-1.7887/2014 SYNDICATEBANK • petitioner versus ALL INDIA BAMC DEPOSIT COLLECTORS FEDERATION&ANR. Respondents + W.P"(C) 7589/2014 & CM NosJ7888-17889/2014 VIJAYABAmC Petitioner versus mc) No. 7571/2014 Page3of45 -UIL S3 ALL INDIA BANIC DEPOSIT COLLECTORS FEDERATION&ANR Respondents + W-P-(C)7590/2014& CM Nr.» I7«an_ii7891/2014 INGVYSYABANK LTD, peftio"er versus ALL Il^roiABAMCDEPOSITCOLLECTORS FEDERATION + VyPJC) 7S91/2014& CM Wo8.H7892-17R')H/7ni4 PUNJABNATIONALBANK Petitioner versus ALL INDIA BAhnC DEPOSIT COLLECTORS federation..ANR .^Sonll^ ' V^P.(C)7698/2014&CM Nos.18130-18111/7.f]ni4 THE SOUTHINDIANBAMCLTD. Petitioner versus ALL INDIA BAMC DEPOSIT COLLECTOR federationsA,^ ... Sondenf; + W,P.(C)7832720lj_tgi:CM Nos"18386-18387/2014 KARANATAKABANKLTD. versus ALL INDIABAMvDEPOSIT&AW. Respondents i-yPfC) No. 7571/2014 Page 4 of45 W.P.(C)7833/2014& CM Nns 1S;i;88-18389/2ft14. CENTRALBANKOF INDIA • Petitioner versus ALL INDIA BAMTC DEPOSIT COLLECTORS FEDERATION&ANR Respondents + W^P.(C) 8056/2014 & CM NoJ882f)/?.0il4 CANARABANK versus ALL INDIA BAMC . DEPOSTI COLLECTORS FEDERATI.0>4&ANR. ...!:Lpon™nf + W.P.(Q,8063/20M& CM W».18827/M14 ANDHRA.BAMi versus ALL INDIA BANK DEPOSIT COLFCTORS federation&ANR Resp™ + W.P"(C)8065/2014& CM No..18829/2014• corporation BAMC versus ALL INDIA BANK DEPOSIT COLLECTORS federation&ANR _ Responded Representedby:- Mr. JagatArora& Mr. Rajat Arora, Advocates for the petitioners. WP(C) No. 7571/20N " - . Page j 0] 45 •:—I-L...1 L : . • Ml-. Inderjit Singh, Advocate for respondent No. 1/Federation. • Ms. Pvashmi B. Singh, Advocate for respondent No.2. COMAM: HON'BLE MR. JUSTICE SURESH ICAIT SURESH ICAIT. J.

¶1This batch of writ petitions are directed against the Award dated 07.10.2013 and modified vide order dated 02.06.2014 wherebythe learnedTribunalheld as under "188. On above standard, a deposit collector wouldget a sum of Rs.9000.00 in ayear toyvards conveyanceallowance. Adding that amoimi to the cost incurredon a depositcollectorfor collection ofRs.3 lac, the bank had to spend only a simi. of Rs.96,000.00 onfallbackyvages + Rs.400000 on gratuity+ Rs.9000.00as conveyanceallowance. In all, hanks have to spend a sum ofRs.J,09.000.00 out of the earning of Rs.1,22,,850.00. This arithmeticprojectsthat bypaymentofthat m.uch of amount, the bank would, earn something on a collection of Rs.3 lac per month by a deposit collector of 'C area city. Earning of the bank wouldbe more oh collectionofdepositcollectorsof 'B' area and A' area cities. Wien deposit collectors would collect more than the minima prescribedfor them., the income ofthe bank would grow more. Arguments of the bank relating to economic viabdity of the scheme would have an answerfrom the above reasoning. y\'r(C) No. 757I/2()!4 " , Page.6o/4j

¶189The Tribunal has power to give reti'-ospect.iveeffect to its. award, as held by the Apex Court in Edgeson Woollen Mills (1969(2) LLJ 782) and Sarva Shrarnik Sangh Bombay (1993 Lab.I.C. 870). It is a well establishedpropositionof law'that an industrial adjudicatorcan treat the date ofdemandand the date on which he award comes intoforce as two extremepoints to give effectto the award. The date from yvhich this aM>ardwouldbe effective,should.be decided by the-Tribunalon considerationoffacts and circumstances projectedherein. As avmrd Ex.WWl/3 highlights,fixation offall back wages and incentive remuneration was based on the circumstancesprevalentin theyear 1981. Thefall back wages and incentive remunerationfixed by award dated 22.12.1988, remainedstatic till date. Thepresentdisputewas raisedby the Federationin the year 2003. After raising of the dispute and duringthe courseofadjudicationafew ofthe banks closed their small deposit schemes. In case this aymrd^is notgiven any retrospectiveeffect, then the depositcollectorsofthe banks, who had closedthe schem^ y,ouldnot be eligibleto get any reliefout oj It. Therefore, 1am ofthe consideredopinionthat this Tribunalshouldgive retrospectiveeffectto the aymrd so that the deposit collectors, whose case M>a.s projectedbefore the Tribunal, may also avail their rights so adjudicatedherein. In view ofthe abovediscussion,it is concludedthatthe demandof the Federation/Unionfor enhancementoffall back wages and incentive remuneration, besides conveyance allowance is justified The issue is answered,accordingly. Relief WP(C) No. 7571/2014 Page 7 of45

¶190In view of the findings recordedon issue No.1, it is orderedthatdepositcollectors,operating in 'A' area, 'B' area and 'C area cities would collectatleastRs.3 lac, Rs.4 lac and Rs.5 lac per month respectively.They can meet the targetevery month or may collecta sum ofRs.9 lac, Rs.12 lac andRs.l5lac respectivelyon 31" March. 30"'June, 30 Septemberand 3r' Decembereveryyear. On a collectionofRs.3 lac, a depositcollectorwould get fall back M'ages of Rs.8000.00 per month, besides conveyance allowance of Rs.750.00 per month. He will also get gratuity ofRs.4000.00 everyyear. On a collectionofover andaboveRs.3 lac and upto Rs.5 lac, all deposit collectors,- irrespectiveof their areas of operation, will earn incentive remuneration of 3%. Thus, a deposit collectorof 'B' area and 'A' area city M'ouldget Rs.3000.00and Rs.6000.00respectivelyper month as incentiveremunerationon minim.a limit oftheir collection. On collectionofover and above Rs 5 lac. a deposit collector would get incentive remuneration of 2%. All deposit collectors. irrespectiveoj areas oftheir operation,wouldget conveyanceallowanceatflat rate ofRs. 750.00per month.

¶191In case offailure ofa depositcollectorto meet minima standardofcollectionconsecutively for two quarters ofa year, his contactofservice would be snappedby the bankwithoutanyfurther ,notice to him. For this inefficiency,he will not he able to claim any right of being heardfrom the bank.

¶192The award will have retrospective operation from 19.07.2005,•the date when the banks were summoned to appear before the Tribunal. An award is, accordingly,passed. It be WP(C) No. 7571/2014 sent to the appropriate Government for publication. "

¶2Vide Orderdated 02.06.2014,LearnedTribunalmodifiedthe Award that whereverit is recordedthat the Collectorsoperatingin areas A, Band Cwould collectRs.3, Rs.4 aiid Rs. 5Lac shall be read as "the Collectorsoperatingin areas C. Band Awouldcollect R-S. j Lac, Rs. 4Lac and Rs. 5Lac per monthrespectively."

¶3The brieffacts leadingto filing of the presentpetitionsare that most of the Nationalized/private/subsidiaryBanks of State Bank of India had introducedaScheme known as Pigmy Deposit Collection Scheme. It was Imown by various names in different banks. The Schemes were infroducedat various points of time in the year I960/1980's. Some of the banks had introduced the Scheme much eai'lieralso. The basic conceptof the Scheme was that the Pigmy Deposit Collectors (hereinafter refeired to as 'Collectors')would visit the homes/officesof the customers to collectcash and depositthe same in theirbanicaccountsmaintained with the respectiveBanl<s. TheseSchemesservedthe dual puipose, i.e., the Bankswouldget the depositsfrom the customers,wherethe Banking business was not widely expanded and would also encouragethe vast majority of the people to inculcatea habit of savingsby gettingtheir depositin tlie Banlcs witlioutspendingany time or effort as the same was collectedat their own door steps eitherat home or shop/placeofbusinessor work etc. WP(C) No. 7571/2014 Page 9 of45

¶4Thereafter,the Collectors organized themselves through a union and raised an industrial dispute which was referred to the IndustrialTribunal,Hyderabad for adjudicationwith the following terms of reference:- "mietherdemand ofthe commissionagents or as the case may be, depositcollectorsengagedin the banks listedin the annexiirethattheyare entitledto pay scales, allowancesand otherserviceconditions available to regular clerical employees of those banks is justified ?'If not, to what relief the ^'VorJanenare entitledto andfrom whichdate?"

¶5The HyderabadTribunalansweredthe referenceby awarding the reliefto Collectorsbelow 45 years as on October 1980 to be considered for-absoiiDtion as Clerks and Cashiers if they are matriculates and above, including qualified Graduates and Post Cn-aduates. Those who are absorbed shall be treated at par with regular clericalemployeesof the Banks. Those who are qualified with 8"^ Class and below matriculates shall be considered for absorption as sub-staffby taking qualifying examination.Those who are above45 years'and thosewho do not wishto be regularized shall be paidRs.750/-p.m. linkedwithRs.7,500/-p.m. They would be paid for collectionover P.s.7,500/-acommissionat 2%. Also a uniform conveyance allowance of Rs.50/- p.m. for deposit upto Rs.10000/-or upto Rs.30000/-p.m. They should be paid gratuityof 15 days commissionfor eachyearofservicerendered. lyP(C) No. 7571/2014 #

¶6The above mentionedAward passed by the HyderbadTribunal was challengedby the SyndicateBanlc before the High Court of Hyderabad.The WritPetitionwas allowedby modifyingthe Award thatnone ofthe DepositCollectorscouldbe absorbed,however,the fall back wages, incentive commission, conveyance allowance, gratuitywould be payableto.them.

¶7Being aggrieved,tie Unions of Collectors challengedtlie Higli Court Judgment before the Supreme Court. The same was decided in the case of Indian Banks' Association Fs Syndicate Bank 2001 SCC (L&S) S04 whereinthe Apex Courtheld that the Deposit Collectorscannot be treated as regular employeesof the Bank,tiioughthey may be 'workmen'underthe IndustrialDisputes Act.

¶8Accordingly,the SupremeCourtexpressedits opinionin para 27 & 28 as under:- '27.^ We also see no force in the contention that Section 10 ofthe BankingRegulationsActprevents employmentof persons on commission basis. The proviso to Section10makes it clear that commission can be paid to persons who are not in regular employment. Undoubtedly the Deposit Collectors are not regular employees of the Bank But they neverthelessare workers within the meaningofthe term as definedin the IndustrialDisputesAct. There is clearly a relationship of master and servant between the Deposit Collectorsand the concerned Bank. IVP(C) No. 7571/20/4 ' " , , . Page I! of45

¶9lf\

¶25Mr. NageshvarRao is right in his submission that the concessionwas not bindingon his clients. However, what has been conceded has been correctlyconceded. No questionarose ofdirecting absorption of the Deposit Collectors as regular workmen. No such demand had been m.ade and, therefore, there coidd have been no such direction. Such directions were beyond the reference. Even otherwise,the questionofabsorptionwouldbefully coveredby an authorit)^ofthis Court in the case of Union ofIndia vs. K. VS. Baby. In this case it has been held that persons M^ho are engaged on the basis ofindividualcontractsto workon commission basis cannot be equated'with regular employees doing similarwork It has been held that the mode of^selectionand qualificationsare not comparable with those of the employees, even though the employees may be doing similar works. In the presentcase, not onlyare the modes ofselectionand qualijicationsnot comparable,but even the work is n^t comparable. The yvork which the Deposit Collectorsdo is completelydifferentfrom the work which the regularemployeesdo. There was thus no question of absorption and there was also no question of the Deposit Collectors beingpaid the same pay scales, allowances and other service conditionsofthe regularemployeesofthe banks." Mr. Jagat Arora, learnedcounsel appearingon behalfof the petitioners submitted that the present reference to the Tribunal contanisthe followingterms ofreference: •• Wh^th^r the-clemandof All India Banks Deposit of 27 17 IQQR h r f dated I rt. i \ Hyderabad. VI hich IS based on ConsumerPrice Index at 500 points (Base 1960=100) to the present ConstJr WP(C) No. 7571/2014 Page 12 of45 \'y Price Index and their upward revision is justified? Whether the demand-of All India Bank Deposit Collectors Federation for reimbursement of Conveyanceexpenses at revisedand enhances rate is justified? If so, yvhat relief the said, deposit Collectorsemployed by various Banks represented by the IndianBanks' Associationare entitledto and ' from which da.te? "

¶10Mr. Arora submittedthat the impugnedaward given by the Tribunalwherebyreliefhas beenawardedin favourofthe worlcmen is vitiated,withoutjurisdiction,illegal, liable to be set aside or in any event be remanded back to the Industrial Tribunal for determinationin accordancewith law. The Tribunalis boundby the terms of reference and cannot travel beyond the same. In the presentcase there was no referenceregardinggratuity.There were no pleadings in the claim statements filed by the two unions claiminggratuitybut still under the impugnedaward gratuityhas been awardedthat too in violationof the provisionsofPaymentof GiatuityAct. The Act prescribesthat minimum5years of service is required. However,underthe impugnedawardthe gratuityis to be.awardedwithoutany minimumperiodofservicefor eligibility.

¶11To strengthen his arguments on the issue raised, learned counsel relied upon the judgmentofthe SupremeCourt in the case of JJL Iron and Steel CoXt±, Kcmpur vs. The Iron and Steel Mazdoor Union, Kanpur AIR 1956 SC 231 in which the Apex Court has held as under:- pyPfC) No. 7571/2014 hb

¶22All the same, wide as theirpowers are, these Tribunalsare not absoluteandthere are limitations to the ambitoftheir authority.In BharatBank, Ltd vs. EmployeesofBharatBankLtd. 'AIR 1950SC 188 at p. 20j (C), this Court held by a majority that though these Tribunalsare not Courts in the strict sense of the term: they have to discharge quasi-judicialfunctions and as such are subject to the overridingjurisdictionof this Court under Art 136 ofthe Constitution. Theirpoyvers derivedfrom, the statute that creates them and they have to function within the limits imposedthereand to.act according to its provisions " I

¶12Furtherreliedupon the case ofM/S. Parryand Co., Ltd. vs, P.C: Pa! Oihers.AIR 1970SC1334in whichthe ApexCourtheld as under:- the Tribunal had to confineitselfto the pleadingsand the issues arisingtherefromand it was, therefore,not opento it to fly off at the tangent disregardingthe pleadings • and reach any conclusionsthat it thoughtas just and proper."

¶13Learned counsel also relied upon the case of Workmen of M/s. Hmdustan Lever Ltd. and others vs. ManagementofM/s LeverLtd. AIM 1984SC 516 in whichtlie Apex Court held as under:- _ Tribunalmay as wellframe preliminaryissues ifthe point on which the parties are at variance^as reflectedin theprelimi?7aryissue, wouldgo to the root ofthe matter. But the Tribunal cannottravel beyondthe pleadingsand arrogateto Itselfthe power to raise issues which the parties to l'VP(C) No. 7571/2014 the reference are precluded or prohibitedfrom raising; to wit if the employerdoes not questionthe status of the worlanen, the Tribunalcannotsuo moto raise the issue andproceedto adjudicateupon the ^ sam.eand throw out the referenceon the soleground that the concerned worlcnaan was not a workman within the meaning of the .expression of the Act

¶14Mr. Arora furthersubmittedthat the Tribunalwas to see the scope of the reference from the circumstances preceding the reference. Since no claim was raised in the pleadingsbefore the Tribunal,no 'industrialdispute' exists in relationto gratuity,thus the Tribunalhas disregardedthe well settledlaw. -15. Learned counsel fiirther submitted that the Tribunal has proceeded on the basis as if the mini Deposit Collectors were employeesand, therefore,they are entitledto better remuneration than fixed earlier. Whereas, the Apex Court in case of Indian Banks'Association(supra)clearlyheld that thfey camiotbe treated to be regularemployeesbut they are only 'worlanen'underthe Act.

¶16Mr. Arora submittedthat the Tribunal misdirecteditselfby not considermgthe cost analysisin runningthe schemesas per the chart extracted at page 13 and 14 of the WP(C) 7571/2014. He contendedthat the financialaspectwas completelylost sight of by the Tribunal. As per the evidenceof worlcman, namely, Mr. IP. Ponnusamy,Mr. AshishBilalaand Mr. A.N. SivananadBabu,they have admitted that Banlcs are suffering losses'in the scheme in question and the Unions have done no study or research to show J'F/YO No. 7571/2014 Page 15 of45 aboutthe costbenefitanalysis. Whereasthe BanlcManagementhad . pioduced documents in evidence showing losses. In number of cases the Supreme Court has obsei-vedthat financial capabilityis one of the main criteria before any monetary benefit could be ^ grantedto the woiiaiian.

¶17To strengthen his arguments on the above issue, learned counselreliedupon the case of/iJL BindalaridAnothervs. Union ofIndia and Others 2003-11 LLJpage 1078 in which the Apex Court observed as under;-

¶16The contention that economic viability of the industrial unit or the financial capacity of the - employer cannot be taken into considerationin the matterofrevisionofpay scalesofthe employees,does not appealto us. The questionofrevisionofwages of workmen was examined by a ConstitutionBench in ExpressNewspapersLtd and Ors. vs. Union ofIndia and Ors. AIR 1958 SC 578: 1961-I-LLJ-339,having regard to the provisionsofIndustrialDisputes Act andMinimum WagesAct and thefollowingprinciples forfixationofrates ofwages were laiddown atp367 ofLLJ:

(1) that in thefixationofrates ofwages which include Mnthinits compassthefixationofscalesofwages also, the capacity of the industry to pay is one of the essential circumstance to be taken into consideration exceptin cases ofoare subsistenceor minimumwage where, the employer is bound to "pay the same irrespective ofsuch capacity ; mC) No. 7571/2014 Page 16 of45 X_..: L 1i31M

(2) that the capacityof the industry to pay is to be considered on an industry-cum-regionbasis after takingafair crosssectionofthe industry;and

(j) that^the propermeasurefor gaugingthe capacity of the industry to pay should take into account the elasticit)^ofdemandfor the product, thepossibilityof tightening up the organisationso that the industry could pay higher wages without difficulty and the possibility of increase in production considered in confunction with the elasticity of-demand for the product-no doubt againstthe ultimate back-ground. that the burden of the increasedrate should not be suchas to drivethe employerout business

¶18Mr. Arora forther submitted,that the Tribunalhas also erred in grantingthe relieffrom aretrospectivedate withoutrealisingthe financial implicationof the award. In most of the cases, such as State Bank of Jaipurand Bikaner,the financialimplicationis more than 373 laldis, and similarlyin other connectedbanks. The scales fixed by the Tribunal while comparingthe Banking Sector with Industrial Sector or insurance industries itself shows that the 1nbunalhas comparedthe commissionpaidto the Collectors,

¶19Learnedcounselsubmittedthat all industriesare differentand wages or minimumwages are fixed'foremployeesin thatparticular industry. In the present case of Collectorsthey are not "regular employees" as held by the Supreme Court. They have no fixed working hours, no disciplinarycontrol by the Banks, no hours of work, leave etc. The comparisonwith the insuranceindustriesand otherindustriesis, therefore,untenable. WP(C) No. 7571/2014 Page 17of 45

¶20Mr. Arora further submitted' that learned Tribunal also misdirecteditself by adding parties to the reference and made the award applicableto them when in fact no demand has been raised against them. No conciliation had taken place and such unjustifiableand untenabledemands have been granted. It is the setded law that for raising a valid 'industrial dispute', the conciliationproceedingsto take place, Govt. to considerthe report of Conciliationand then make a reference. However, by adding parties the Tribunal acted unjustifiablygiving no chance to the employers concerned to place/plead their cases before the Authoritiesconcerned.Thus, the principlesof naturaljusticehave been violated.

¶21Mr. Arora fiirtliersubmittedtliat in one of tire writ petition, I.e.. \VP(C)No.8236/2014and otlier petitionsthe point liad Ijeen raisedtliatno tenurelias beenfixedby the Tribunalunderthe award for keepingthe deposit. Therefore,it has so happenedthatsome of the deposit once made is again withdrawn and recycled and thus, the same money is iLsedagainand againby the Collectors.

¶22It is peitinentto mention here that vide order dated 27.11.2014 this Courtpermittedthe petitionersto file an additionalaffidavitto explainthis phenomena. Accordingly,on peiTisalofchartsit shows that the money is taken and withdraw and further shows how lossesare beingcausedto the Banks. I'mCJ A'o. 7571/2014 Page 18 of45

¶23Mr. Arora submitted that on pleadings of the parties, the learnedTribunalframedthe follov/ingthreeissues:-

(i) As per termsofreferencesent by GovernmentofIndia,

(li) Was' there any privity of contract between the concernedworkmen and the IBA? IF not, what are • •' • consequences? •(Hi) Relief "

¶24The learned Iribunal gave its opinion on the issue.no.(ii) above in para 89 inits Awardwhichis as under:- "89. Recordtells thatvide orderdated19.07.2005, 40 banks were summonedto representinterestofthe • employer. Those hanksfiled their respectivewritten statementsand contestedclaims putforward by the Federation as well as the Union. Admittedly, the ^ deposit collectors represented by the Federation , /Union, work Mnth those banks, who have been added as parties to the dispute. On impleadmentof those banks as parties to the dispute, the issue became redundant.Accordingly,it is concludedthat the issue, referredabove, needs no adjudication.It is answered accordingly.!' 2j. Learned counsel further submitted that the Payment of Gratuity Act, 1972 is not applicable on worlcmen, however, it applies only to the employeesunderthe said Act. Therefore,the-Av^aid on the gratuity and other issues raised above is to be set aside. WP(C) No. 7571/20/4

¶26On the other hand, Mi". Inderjit Singh, learned counsel for respondentNo.1/Federationsubmittedthat the impugnedaward is just, fair and based on determinedappraisalofevidence. Therefore, this Court may not disturbtlie same v>/hileexercisingits supervisory jurisdictionas the writ petitionsare not bonafidelyfiled and their only objectiveis to tear out the poor v/orlcmenin endlesslitigation. As argued by the counsel for the petitioners, the learned Tribunal had added parties to the referencewithoutjurisdictionand against the provisionsof the IndustrialDisputesAct, 1947. In the case of HochtkfGammon vs. IndustrialTribimal,Mhiibaneshwar,Orissa ccS Ors. Industrial Tribunal, Bhubaneshwar, Orissa and Ors. [1964J 7 SCR-596 the Apex Court has held that a party to the industrial dispute named in the order of reference does not completelyor adequatelyrepresentthe interesteitheron the side of the employer, or on the side of the employee, it may direct that othei peisonsshouldbe joinedwho wouldbe necessaryto represent such mterest. The test always must be, is the additionof the party necessaryto make the adjudicationitselfeffectiveand enforceable? Moreover, the order of impleading the other banlcs .in the proceedingsbefore the Tribunal ought to have been challengedat that point of time. However,the petitionerwaitedfor the resultof the same. Hence, at this stage, the petitionersmoved to this Court just to defeat the fruits of,the respondentsworkmenreceivedfrom the Tribunal. H/PfC) No. 7571/2014 IlHiL

¶27Learned counsel Hirther submittedthat the learned Tribunal rejectedthe cost benefitanalysisbecausethe same was not certified by the Auditors of the petitioners'Banlcs and also because it was ex-lacie a tabricated document. Incidentally,the Cost Benefit analysis does not come within the ambit of Bankers Books as defined in Section2(3) of the Banks' Books EvidenceAct, 1891. The same reads as under:- . ' "bankers' books""includeledgers,day-books,cash-books, accouni-booksand all other records used in the ordinary business of the bank, whether these recordsare kept in writtenform or storedin a micro film, magnetic'tape or in any'- 'other form of mechanicalor electronicdata retrieval mechanism either onsite^or at any offsite location includinga back-upor disasterrecoverysiteofboth;"

¶28Moreover,the pleathat die schemewas un-remunerativewas rejected by the Supreme Court in the case of Bindal(supra) observing as under;- "27. . Shri NageshwarRao, learnedsenior counsel appearingin TransferredCase No. 35 of 2000 (Writ Petitionfiled.byemployeesofHFC in CalcuttaHigh Court) apart from, challenging the validity of the OfficeMemorandumon the same groundsalso urged that the price of urea was fixed by the Government under Fertilizer Control Order which was wholly • unremunerativeand, therefore, the employees'cannot in any y\'ay he held responsiblefor the lossessuffered by the Units and consequentlythey should not be made to suffer on that account. We are unable to . entertainthis suhnissionas thefactualfoundationfor I'VPfC) No. 7571/2014 " such aplea has not been laid in the pleadings. That apart, learnedcounselfor the respondentshas made a statement that the Government had reimbursed the Units in that regard.

¶29Learned counsel further submitted that the banks are admittedlymaking huge profits.asindicatedin paragraphs 180 & 181 of tne impugned award. He further submittedthat if the schemeot the banlcswas goingunderloss, it was up to the banlcsto close or continuewith that scheme. If, despite the scheme being runningmloss,the banks are continuingwiththe said scheme, then the poor workmen should not suffer for the loss incurred by -the banks in particular scheme.

¶30Learned counsel further submittedthat the TribunalrefeiTed to minimum wages mPara 181 of the award to conveythe simple fact that the Collectorscould not be paid less than the prescribed minimum wages. Needless to mention that the Apex Court held long backin the cases ofBijoyCottonMills/1955J1LLJ129and Alum,mm, Works[1958],/ LLJ I that an employer,who cannot pay even the prescribedminimum wages, has no right to exist. Moreover.Article43 of the Constitutionof India mandates thatthe Stateshouldendeavourto secureto all the workersaliving wage. Fixing of a minimum wage is just a first step. The remunerationpaid to the DepositCollectorswas not revised since 1988 and the learnedTribunal,vide the impugnedaward, has only l'VP(C) No. 7571/2014 . .i - ..-.UIME I ! tried to pull up their remunerationnear about the minimumwages level.

¶31Learned counsel further submitted that the plea of the petitionerstliat Collectorsare not the employees of the banks is Wholly wrong, motivated and false. As per the definition of workman in section 2(s) of the liuiustrialDisputesAct, 1947, the respondents'workmenare employeesoftliepetitioners/ banks. j2. On the issue of gratuity raised by the petitioners,learned counselfor the respondentno.1submittedthatthe learnedTribunal, while dealingwith the issue offair remunerationofthe Collectors, merelyobservedin Para 184 that •'....His paypacketwouldcome to Rs.J1000.00in amonth, besidesagratuityofRs.4000.00ayear." Therefore,gratuity was just mentioned to show the overall total incomeofDepositCollectors. It is hardlynecessaryto mentionthat gratuity is only a terminalbenefitand is to be paid at the time of exit of the employees. Therefore,mentionof the word 'gratuity' was only by way of an illustration. In any case, this Court may modify that gi-atuity shall be paid to the Collectors as per the Pa3/mentofGratuityAct, 1972, 3J. Learned counsel further submitted that another gi'ievance raised by the petitionersis about the retrospectiveeffectgiven by the Tribunal in the award. It will be seen from para 192 of the awardthat retrospectiveeffecthas been given from 19.07.2005,the date when the individualbanks were summonedto appear before i'VP(C) No. 7571/2014 Page 23 of45 - ---J ^ ; j— the Tribunal. It is well settled law that grant of relief is in the discretionof the Tribunaland the same can be grantedeither from the date of raisingthe disputeor from the date of referenceor from the date of award. Therefore,having regard to all the facts of the case, d-ie learned Tribunal has given relief to the Collectorsfrom

19.07.2005. It is pertinentto mention that Collectorseven now will be in receipt of remunerationjust about equal to the sub ordinatestaffemployed.inthe banks althoughthey admittedlydo clericaland cash handlingwork.

¶34To strengthenhis arguments,learnedcounselhas reliedupon tiie case ofSarvaShramikSangh,Bombayvs, IndianHume'Pipe Co. Ltd. andAnrJ993Lab IC 870, whereinthe Apex Court held that the Tribunal can grant relief even with effect from the date anteriorto the date ofraisingan.industrialdispute. 3j. On the issue that the learned Tribunalhas travelledbeyond the terms of reference,learned counsel for the respondentno.l has placedrelianceon aDivisionBenchjudgmentofthe BombayHigh Court in the case of^Sheshrao BhadujiHatwar vs. 'PM., First Lubour Court &others 1992-1LLJ 672 Bom. that even if the referenceis not happilyworded, it-willnot justify'short-circuiting the referenceby ignoringthe basic backgroundand subjectingthe poorworlananto untoldmiseryand hardship.

¶36While concludinghis arguments,learnedcounsel submitted thatthe Bankshave raisedall the issuesjustto frustratethe interests WP(C) No. 7571/2014 Page 24 of45 5^ ol the respondentworkmen. This Court under Article 226 of the Constitutionof hidia should not normallydisturbthe award passed by the Tribunalon technicalgrounds. The petitionershave failedto establishthat there is any perversityor illegalityon the face ofthe awaid. Ihe learnedTribunal on all the issues has given sufficient reasons based on evidence on record and the legal position available. Therefore,the writpetitionsare liableto the dismissed.

¶37Ms. Rashmi B. Singh, learnedcounsel for respondentNo.2, ni addition to the submission made by the counsel for the respondentno.l, submittedthat during hearing of these petitions, this Court allowedthe petitionersto file some additionalevidence to satisfythe consciousof the Court. The said documentshave no legal sanctity as they are not proved by any of the witnesses. Moreover,the plea of the counsel for the petitionersthat some of the Collectors deposited the same amount in the account of the depositorson anumberoftimes in ayear. They used to open the account,depositthe amountand thereafterclose the account. This type of practice,ifcontinuedbecauseofthe fault ofthe petitioners the respondentworhnencamrotbe blamedfor that. The petitioners are free to make guidelinesrelatingto the life of the depositsand only thereafterthey can give commissionto the Collectors. If it is presumed that has happened in a few cases, the interest of the workmencannotbe put on jeopardyonly for the sake that some of tne Collectoisdie misusingthe schemewhich can be curtailedby the petitionersbanksthemselves. IVPfC) No. 7571/2014 Page 25 of45 5^

¶38O'li the other issues, learned counsel has supported the Eirgiimentsof learnedcounselfor the respondentno.l andsubmitted that the petitionershave only raised technicalissues without any basis and evidence which has to be rejected and the petitions deserve to be dismissed;.

¶39I have heardlearnedcounselfor die parties.

¶40The respondentno.l Federationpleadedbefore the Tribunal that bank managementsresorted to reducing rates of commission iTom 3.5% to 2% for collection over and above Rs.7500/- per month. Banlc managements also took steps to recover excess amount paid from 1997. Above steps were illegaland unwarranted. Banks have been paying3.5% commissionfrom 1978 to 2002 and subsequentlyreducedit to 2%. In fact, the Associationmistookthe incentive remuneration as commission. The Federation flirther projectedthat incentiveremunerationis part of the fall back v/ages for doing clerical work in the banks and the comrnissipn is for manual work done by the Collectorsin collectingthe amount. The IndustrialTribunal,Hyderabad,AndhraPradeshHigh Courtand the Apex Court did not strike down the contractbetweenthe Deposit Collectors and the banks, hence banks were paying 3.5%) commissiontor the manual work. Accordingly,linkageoffall back wages of Rs.750/- determinedby IndustrialTribunal,Flyderabad, vide award dated 22.12.1988,which was based on consumerprice index at 500 points (base 1960 =100 points), has become totally out of date due to afflux of time and tremendousrise in prices in WP(C) No. 7571/2014 Page 26 of45

¶1J last 15 years. The fall back wages are required to be adjusted upwards, related to the present consumer price index. Fall back wages of Rs.750.00was-linkedto minimum deposit of Rs.7500/- per month. This linkagewas based on consumerpriceindex at 500 points. At present, consumer price index stands at 2438 points. Moreover,TenthFive year planhas projectedannualgrowthrate of 8% in GDP as its target.

¶41The State Governments have fixed minimum wages on upward side consistently. In order to showjustificationof linkage of fall back wages ofthe Collectors,with All IndiaConsumerPrice hidex, the Federationdetailsthe amount of minimumwages, fixed by the Governmentof NCT Delhi from time to time. In the year 1988 minimum wages for unskilled was Rs.562/- and for matriculateRs.750/-. Wliereas in the year 2003, the minimum wages for the aforesaid two categories were Rs. 2783.90 and 323 1.90 respectively.

¶42It IS pertinentto mention here that the claim filed by the Federation before Industrial Tribunal, Hyderabad was that minimumwages in the region of Rs.800/-at 500 points in the All India ConsumerPrice Index for industrialworkers on the basts of comparison of different wage stractures in public sector undertakingmay be awardedin their favour. The respondentno.l claimed only Rs.750/-,which was linked to 500 points without claimingany dearnessallowancethereon. Incentiveremuneration ol 5% on depositscollectedin excessofRs.7500was also claimed, WP(C) No. 7571/2014 5? apart, benefitsofweekly holidays,nationalfestivals,annual leave with wages,sick leave, medicalleave and retiralbenefits.

¶43Accordingly,the Industrial Tribunal, Hyderabad, answered the reference as follows; 'YO All the deposit collectors and agents who are below the age of45 years as on October 1980 (the date ofreferenceto the Tribunal)shall be considered for regular absorption in the post of clerks and cashiersiftheyare m.atriculatesand above, including . qualifiedgraduates and post graduates. Those who are absorbedshall be treated at par with regular clerical employees of the banks. Those M>ho are qualifiedwith 8"' class and below matriculateshall be consideredfor absorptionas sub staffby taking qucilifyingexamination.

(ii)As regards depositcollectorsand agents who are above 45 years of age as on 03.01.1980 and also those who are umvilling to be absorbed in regular bank service, they shall be paidfall back wages of Rs.750.00per month linkedwith minimum depositof Rs.7500.00 per month and they should be paid - incentiveremunerationat 2%for collectionover and above Rs. 7500.00 per month and they shouldalso be paid uniform conveyance allowance of Rs.50 per month for deposits of less than Rs.l0,000,.00and Rs.lOO per month for deposits of more than Rs. 10,000.00or upto or above Rs.30,000.00per month. They should be paidgratuit)^of 15 days commission for each year ofservice rendered. " . ' •

¶44The Award dated 22.12.1988,passedby IndustrialTribunal, Hyderabad,was assailedby SyndicateBaiilcbeforethe High Court WP(C) No. 7571/2014 Page 28 of45 of AndhraPradeshwherebythe writ of Syndicate_Bankwas partly allowed as under: "On conspectusof consideration,the award reached • the conclusionthat depositcollectorsare worlonenof the respective banks though they are not and also cannotclaim to be regularemployees.In view ofthe conclusion, it necessarilyfollows that the scheme evolvedby the Tribunalin Para 69 ofthe awardfor absorptionofthe deposit collectorswho are below 45 years of age as on 03.10.1980has to go. But the award also directed that the deposit collectorswho are above 45 years and-those who are not willingto be absorbedas regular employees, be paidfall back wages oj Rs.7jQ.00 linked, with minimum deposit of Rs.7500.00per month plus incentiveremunerationat 2%. Besidessuch unabsorbeddepositcollectorswere also made entitledto conveyancealloyyanceofRs.50 per monthfor depositof less than Rs.10,000.00and Rs.100per monthfor depositsofmore than Rs.10000 upto or above Rs.30,000.00per month. Besides, they were also entitledto gratuityof15 days commission for eachyear ofservice rendered. Now that yve find that,all deposit collectorsare only Mrorhnen and none can be absorbedas regular employees,all ofthem have to be treatedas only one category. The award would hence uphold and apply the decisionoj the Tribunal forpayment'offall back wages and inventive' commission as well as conveyance allowance and gratuity to the deposit collectorsas yvorkmen. The awardhas been modified accordingly. "

¶45Being aggrieved,the Associationcliallengedthe judgement dated 28.03.1997, delivered by High Court of Andhra Pradesh beforethe SupremeCourtwhichruledas under:- Wr(C) No. 7571/2014 We have considered the rival submissions. In our view, Shri Sharma was right when he submittedthat on the basis ofevidencebefore it, the Tribunalhas given findings to the effect that the deposit collectorsare workmen within the meariing of section 2(s) of the IndustrialDisputes Act, 1947. On the evidence on record, it cannot be said that that the finding was unsustainable.Haying been shown relevantevidence, we are also ofthe opinion that the Tribunalcorrectly arrivedat a conclusion that these deposit collectors were yvorlmen. "

¶46On the issue of grant of pay scales, allowances & other service conditions and on continuanceof the schemes the Apex Court concluded as under "In the presentcase, not only are mode ofselection and qualificationnot comparablebut even the work is not comparable. Work yvhich the deposit collectors perform is completelydifferentfrom the work which regular employeesdo. There was no questionof the deposit collectors being paid the same pay scales, allowancesand other sennces conditionsas regular employees ofthe bank The awardalso showed,no substancein the contention thai these schemesare un-remunerative. Banks have introduced these schemes because•they M?ant to encouragecommon man to make small and regular deposits. As a resuh of such schemes, number of depositors have become much large. We have no doubt that such schem.es are continuingbecause the banks find them remunerative. Banks have large collectionthroughsuchschemes " l'VP(C) No. 7571/2014 Page 30 of45 i ' " !r J

¶47It is pertinentto notethat the Apex Court'heldthat Collectors are woriaiienwithin the meaning of section 2(s) of the Industrial DisputesAct, 1947. They are requiredto be compensatedproperly and adequately by the banks. The fact that other employees v/orkingin the banks are beingpaid good fair wages and capacityto pay of the banks is well Imown. Asum of Rs.750/- fixed by IndustrialTiibunal,Hyderabad, is far below even the subsistence level in the year 2003. Therefore,fall back wages cannotbe below minimumwages,fixed by the State Governmentsfrom timeto time. Concept of fall back wages would mean that minimum wages must be paid regardless of all other facts.

¶48It is further pertinentto note that respondentno.l moved an applicationunder section 18(3) ofthe Act on 31.01.2005beforethe Tribunal whereby pleaded 48 banlcs, as named in para 23 of the award, and most ofthe banlcs are party beforethis Court. None of the bank had challenged their impleadment, however, defended their cases before the Tribunal.

¶49On pleadings oi: parties, the learned Tribunal framed the following issues "(i) (W As per termsofreferencesentby Governmentof' India. as there any privity of contract between the concernedworkmen'andthe IBA? Ifnot, what are consequences? irPfCj No. 7571/2014

(in) Relief." jO. As regardsthe issue no.(ii)as noted above, undisputedlythe appropriateGovernmentreferredtlie disputefor adjudicationto tlie Tribunal. In its writtenstatement,tlie Associationtookan objection tliat It is neitlieremployerof the Collectorsnor it lays dowtiterms and conditionsoftheirengagement..Collectorsar-epersonsengaged by the respectivebanks on the basis oftheir individualcontractsto work on commissionbasis. Such individualcontractsare between the banks and the depositcollectorsand as such, on any matter or matters which is/are part of the contracts,they cannot raise any grievance against tlie Association. Accordingly, the learned Tribunalallowedthe applicationundersection18(3)and impleaded 48 bc^ks as mentioned above.

¶51No doubt, it is not open to the Tribunalto travel materially beyond the terms of reference,Avhich detemiinethe scope of its powersand jurisdictionfi-om case to case. However,provisionsof section 10(I)(d)of the Act empowersthe appropriateGovernment to refer the disputeor any matter appearingto be connectedwith, or relevant to the dispute,whetherit relatesto any matterspecified mthe Second Scheduleor the Third Schedule,to a Tribunal for adjudication.Section10(4)ofthe Act provides,thatjurisdictionof an Industrial Tribunal would be confined to points of dispute specified by the order of reference and adds that the said .jurisdictionmay take within its sweep mattersincidentalto the said points. In other words, where certainpointsof disputeshave been IVP(C) No. 7571/2014 referred to an IndustrialTribunal for adjudication,it. may while dealingwiththe said points,deal withthe mattersincidentalthereto, if die Tribunal leels that some persons'whoare not joined to the relerenceshould be brought before it. Accordingly,the Tribunal has powerto make an orderin thatbehalfundersection18(3)(b)of the Act. In the case in hand, the petitionersbanks,whereCollectors are workmg, initially were not made parties to the dispute. Additionofthe banks was necessaryto make adjudicationeffective and enforceable.

¶52Admittedly,the banks impleadedin tlie an-ay of parties are tine employers of the collectors. Thus, the Tribunal has not materiallyenlargedthe scopeofreferenceby summoningthe banlcs to participatein the proceedings.

¶53It is not in disputethat 40 banlcsfiledtheirrespectivewritten statementsand contestedclaims put forward by the Federationas well as the Union. Admittedly,the collectorsrepresentedby the Federation/Union,work with thosebanks,who have been added as partiesto the dispute.Since,initially,the referencewas qua onlythe Indian Banks Associationand. thereafter,joiningof 40 banks witli their respectivestatememsto issueno.l,the issue no.2 has become redundantas rightlyheld by the Tribunal.

¶54The learnedTribunalhasjustifiedby givingexampleofother organizedsectors,viz., steel, power, transport,textilesetc., which show that even a decade back workers employedin these sectors WP(C) No. 7571/2014 Page 33 of45 • if K jr:;^ .it were gettingRs.2130/-to Rs.2850/-per month,besidesotherfringe beneiitsliice annual increments,variabledearnessallowance,house rent allowance, compensatory allowance, washing allowance, children educationallowance,transportsubsidy and uniforms etc. However,no suchbenefitsare availableto the DepositCollectors.

¶55Moreover,SeventhBipartiteSettlement,enteredinto by the banking industry M/hich fixed minimum basic pay of sub stEtff at Rs.2750/- per month, besides dearness allov/ance, house rent allowanceand city compensatoryallowance.Minimum basic-pay for clerical staff has been fixed at Rs.3020/- per month besides above benefits. Fall back wages for collectorswas fixed at Rs.750 per month, when an employee of clerical grade in the bank was getting basic pay of Rs.520/- besides above benefits. His total salary used to come around Rs.750/-per month. Minimum wages ol workmenin various industrieshave gone upwards,as compared to the year 1983. There is amanifestjustificationfor enhancement' m fall back wages of at least Rs.5000/- for collection of Rs.50,000/- per month to compensatethe Deposit Collectorsfor increase in cost of livino;.

¶56It is not in dispute that minimum wages are requiredto be paid to any-industriallabour. In other words, minimum wages is lowest wage below which efficiencyof workmen'islikely-to be impaiied. The concept of minimum wage is not fixed and static, since it variesfrom time to time and from placeto place.Moreover, Tripartite Committee of Indian Labour Conferenceheld in 1957 WP(C) No. 7571/2014 Page34 of45 cleclaiedthat wage policyto be followedirrespectiveof the extent oi pioiits, the financial condition of the establishmentor the availabilityof worlcmen on lower wages. Thus, minimum wage applies to all alike big or small. Afair wage is thus relatedto the earningcapacityand work load. It must be sufficientto providenot onlyessentials,but fair measureoffmgal comfort,withan abilityto providefor old age and evil days. j7. No doubt, for fixa.tion of^ wage structure, industrial adjudicator had to take in account the counter balancing circumstances. In the present case, all the banks are admittedly earningprofitfrom the business. This fact has been admittedby all the witnesses examined by the petitioners as well as the respondents, as have been discussed in detail by the learned Tribuna.1. It is not a matter of dispute that the collectors are workmenwithinthe meaningofsection2(s) ofthe Act, who are not awardedscales of wages applicableto the employeesof the banlcs. They are aspecialclass in themselves.Neitherthey are classifiedas part time employees-nor permanentemployees. However, for the puipose of assessment of their fall back wages and incentive remunerations,it would be taken note of as to what quantum of wages apart time employeegets from the banks. The 9"^ Bipartite Settlement, signed on wage revision, pension and other service conditionsbetv/eenthe Associationand their worlcmenrepresented by theirvariousUnions on 27.04.2010,detailswages paid to apart IVI'(C) No.7571/2014 pPage 3:> of45 -••ij-rn time employee. Clause 21 of the said settlement provides as follows: In substitutionofClause21 ofthe BipartiteSettlement dated2"' June 2005, with effectfrom r' November2007, Part-Time employees who are members of the subordinatestaff on consolidatedwages and whdse normalworkinghoursper week are "upto 3 hours'and ''morethan 3hours but less than 6hours"shall bepaid one third scale wages w.e.f f May 2010. From'T' November2007 to 30"' April 2010, they shall be paid consolidated wages as under: a. Upto 3 hours : -at bank's discretion with a minimum,ofRs.10307-p.m. b. More than 3 hours but less than 6hours: at bank's discretionwith minimwnofRs.11407-p.m. The employees recruitedon or after f May 2010 in part-time,scalewagesshall be at minimumofone third scale wages. " ~

¶58It cannot be in dispute that the Collectorsperform clerical duties, since they collect deposits from the account holders, issue leceipts to them and account for the money so collected to the banks. Though DepositCollectorsare not part time employeesbut assumingthem to be so, they would get 1/3'"^' of scale wages ofthe clerical staft, besides an amount equivalentto the other benefits paid to such employees. Their basic fall back wages would be. Rs.2400/- per month, besides other allowancesadmissibleas per rules. On that standard,fall back wages of the Deposit Collectors shall be primarilyRs.5,000/-per month. Moreoveras emergedout ot the award Ex.WWl/3, rendered by Hyderabad Tribunal, WP(0 No. 7571/2014 " r ,c Page 36 of45 Collectors get fall back wages of Bls.750/- on a collection of Rs.7,500/-permonth. On collectionover and above Rs.7,500/-per month, they get incentive remuneration of 2% assuming that Rs.3,00,000/-per month is collectedby aDepositCollector,his fall back wages and incentive remuneration would be Rs.6,600/- [(Rs.750/- that fall back wages) + Rs.5,850/-' (incentive remuneration)]. Thus, it is obviousthat a Collectoris getting'less than the minimumwages, notifiedfrom time to time and even less than adeemedparttime clericalstaff On perusalofawardEx.WW-1/C, the.main thrust of the Tribunal was whether the Collectors were commissionagents or employee of the banlcs. Accordingly, the Learned Tribunal at Hyderabad held that the respondent/workmanshould be paid a fall back wages of Rs.750/- per month, linked with minimum collection of Rs.7,500/- per month. They should also be paid incentiveremunerationat 2% for collectionover and above Rs.7,500/-per month and also be paid uniformaffirmingallowanceofRs.50/-per monthfor depositingof less than 10,000/-and R.s.100/-per monthfor depositsofmore than Rs.10,000/-or up to or aboveRs.30,000/-per month.

¶59In respectof die other demands, fixationof fall back wages and incentive remuneration,the Learned Tribunal of Hyderabad ruled out that the Deposit Collectorsor agents, are not entitledto weekly holidays, national and festival holidays, annual leave and sick leave. They were virtuallyenjoyingthose benefitsby virtueof non-functioningofbanks on weeklyholidaysarid paid nationaland l'VP(C) No. 7371/2014 " , ,, JJ-" LLEIM (,r festivalholidays.They were also entitledto enjoy leave accountto their ov/n choice after intimatingthe bank as regardsthe retirement benefits. As held by the LearnedTribunal,they cannot claim any providentfund or pension but they should be paid gratuityof 15 days commissionfor each year of service rendered. They are not entitledto medical and hospitalisationcharges and the insuranceas regular employees. They would be entitled to such benefits only after they are regularly absorbed in the banlcservices.

¶60Except the above treatment of alteration relief of the federation, the Learned Tribunal at Hyderabad nowhere linked reiiet of fall back wages and incentiveremunerationto All India Consumer Price Index. When Lligh Court of Andhra Pradesh exercisedpower of judicial review, none of the parties raised the issue to the effect that the fall back wages and mcentive remuneration were linked to All India Consumer Price Index. Therefore,there was no occasionfor High Court of Hyderabadto consideras to whetherfall back wages and incentiveremuneration were linlcedwith All IndiaConsumerPriceIndex or not. The Apex Courttoo was not invitedto deal the issuethat the fall back wages and incentive remuneration, awarded in favour of the Deposit Collectors, were linked to All India Consumer Price Index. In referenceorder,appropriateGovernmenttriedto projectthat the fall back wages and incentive remuneration,granted in favour of the DepositCollectors,have link'withAll IndiaConsumerPrice Index. Resiiltantly,the Learned Tribunal concludedthat fall back wages WP(C) No. 7571/2014 Page 38 of45 and incentiveremunerationawardedto the DepositCollectorshave no linlc with All India Consumer Price Index.

¶61lu case of a Deposit Collector, who collects a sum of Rs.3,00,000/-per month, gets only asum ofR.s.6,600/-(Rs.750/-as tall back wages tI-Rs.5,850/-as .incentiveremuneration).Collection of a 5;um of Rs.3,00,000/-per month is a moderateamountbut fall back wages and incentiveremuneration,which would come in the hands ofa DepositCollectorwould be less than minimumrates of charges, notified for a matriculate clerk.

¶62It IS well establishedthat an employerhas arightto organize or re-organize his business in any fashion, for the pmpose of convenience of better administration for achieving economy, productivityor profitability,subjectto the limitationdiat in doing so, he does not contraveneany Regulationor otherlaws.

¶63It IS pertinent to record that if these schemes are not reproductive, what prevented the banks to close down such schemes. Admittedly,the Pigmy Deposit Scheme was started by SyndicateBank in the year 1967 in southernpart of the country. The scheme attractedother banks too, where it was initiatedwhen thosebanlcswere havingsmallnumberofits branchesin semiurban and rural areas of the country. With the extension of banking industry,branchesofthe banks increasedmanifoldwith openingof branchesin semi-urbanand rural schemes.It is not disputedthat in l'l'P(C) No. 7571/2014 Page 39 of45 JillM some ofthe banks, the scheme has been closedbut such a decision was takenon otherconsideration,besideseconomicfactors.

¶64The Apex Court has affinmedthe decisionofthe State Bank. of India in respect of closure of its scheme, vide its order dated

28.02.2008passedin transfercase (Civil)No. 79/2005titledas A.P. Bank DepositCollectorsAssociationvs. StateBanlcofIndia. Thus, it is clear that the'banks are free to close its scheme if it is not economicallyprofitable.But in case, banlcs opt to continuewith the scheme, they cannot.be allowed to' pay fall back wages and incentive remuneration which are less than minimum charges notifiedfrom time to time. An industryhas to pay minimumwages• to its worlanen. As held' by the Apex Court, the collectors are workmen, a class m themselves,,who had a right to receive. minimum charges in the form of fall back wages and incentive remuneration.

¶65It is settled law that for fixation of rates of wages, an IndustrialTribunalhas to see the financialcapacityofthe industry as awholeto pay. Moreover,fmancialca,pacityofan employerand tiiiancial capacity of a particular unit is to be talcen into consideration.

¶66Undisputedlyoperatingprofitsof the batjcingindustiyhave increasedby Rs.70,790/-croreswhile net profitshave gone up by .27,,iOO/-crores.Therefore,it has eiiiergedfrom the recordthat the banking industry has financial capacity to pay higher fall back I'I'PrCJ No. 7571/2014 y? wages and incentive remuneration. Financial capacity-of a particularbanlc has also been substantiatedthroughthe depositions of the witness produced by the petitionersand respondents,who deposedthat the banks are earningprofitfrom the last many years. Therefore,it is establishedthat not only the bankingindustryas a whole, but individualbanks, where small depositsscheme is'being run, have financial capacity to pay higher fall back wages and incentiveremunerationto the DepositCollectors,engagedby them. Accordingly for 'A' area city, like Delhi, fall back wages for DepositCollectorsshouldnot be lessthanRs.9,386/-.

¶67For ascertainingthe limitof collection,it is to be noted as to what amountot money is being collectedby the DepositCollector in amonth. Sh. Pommuswamywitness of the worlananstatedthat in the year 1978, he used to collect asum of Rs.3,00,000/-per month.As on date, (he enteredin the Avithessbox in the May 2011) was collectingasum of Rs.12,00,000/-approximatelyin amonth. Similarly,AshishBilaladeclaredthathe has been earningasum of Rs.12,000/-to 13,000/-per month as fall back wages and incentive remuneration.He deposed that he has been collectinga sum of Rs.6,50,000/-from accountholders.Accordingly,Sh. AshokKumar has-been collectinga sum of Rs.1,50,000/-to.Rs.2,00,000/-per month trom the accountholders.It is pertinentto note that Sh. LP. Ponnusamy has been operating in 'A' are^ city while other witnesses except Bilala have' been operating in 'B' area cities. Sh. Bilala has been operatingin 'C area city. Accordingly,the WP(C) No. 7571/2014 Page 41 of45 Collectorsoperatingin 'C, 'B' and 'A' area cities would collect Rs.3,00,000/-, Rs.4,00,000/- and Rs.5,00,000/- per month respectively.On collectionsover and aboveRs.3,00,000/-,but upto Rs.5,00,000/-,a Collectorwould get an incentiveremunerationof 3% and on collectionsover and above Rs.5,00,000/-per month, he will get incentiveremunerationof 2% only. Therefore,a Deposit Collector of B area city who had to collect a minimum of Rs.4,00,000/-per month, will get fall back wages of Rs.8,000/- besides incentiveremunerationof Rs.300/- per month. Thus, by collecting more than Rs.5,00,000/-' in a month,; the Deposit Collectorsmay earn more. The amount, which will come to them towardsfall backwages and incentiveremuneration,wouldbe over and above, the minimum charges, so notified by making that payment to the Deposit Collectors, the banks would not be constrainedfinancially at all. The fall back wages and incentive remuneration,as referredabove, have rightlybeen comparedto the wages earned or adeemed part time of clericalstaff, employedin the bank and the minimum wages for a skilled clerical staffin a scheduled employment.

¶68I note that tlie Learned Tribunal recorded in the impugned-award that conveyanceallowanceis being paid to the Collectors @ Rs.50/- per month for deposit of less than Rs.10,000/- and @Rs.lOO/- per month for deposit of Rs.10,000/^over and above upto Rs.30,000/- per month. This quantum of conveyance allowancewas demanded by tlie federation,when it filed its claim irPi'CJ No. 7571/2014 Page 42 of.45 beiore the IndustrialTribunal of Hyderabadin the year 1981..The IndustrialTribunalgrantedthe reliefin toto and fixed conveyance allowancefor the Collectorsat the aboverates. Since 1981 till date, priceofpetrolhas roledmany times. The DepositCollectorshad to leach persons of lower and middle income group, small traders, businessman,artistsand selfemployedpersonsand house wives to collect money from them. These facts have established that a Deposit Collector has to reach his customer, according to convenienceofthe latter.For that puipose,possibilityof going for collectiontwice or thnce a day, cannot,be ruled out. One cannot disputethatm'C area as well as 'B' areacities,the collectorsmay have to travelin aradiusof 10 kilometresdaily.In 'A' area city,he may travel a little bit longer. One cannot be obliviousof the fact thatthese days such bikes are in the marketwhich are fliel efficient. Manufacturersclaim that such bikeshave fuel efficientlyofrunning generally60 kilometresper litre.ADepositCollectorin 'C and 'B' area cities may have to travel roughly 500 kilometresin a month. For ^A' area city, aDeposit Collectormay avail public transport also. Accordingly,the LearnedTribunalopinedthat at least8to 10 litres of petrol in a month is to be spent by a collector. Accordingly,asum ofRs.9,000/-peryearhas beengrantedtowards conveyance allowance.

¶69As per awardEx.WW-1/3the fixationoffall backwages and incentivelemunerationwas based on the circumstancesprevalentin the year 1981. Fall back wages and incentiveremunerationfixed IVP(C) No. 7571/2014 Page 43 oj 45 by award dated 22.12.1988,remained static till date. The present dispute was raised by respondentNo. 1 in the year 2003. After raisingof the dispute and during the course of the adjudication,a few of banks closedtheir small depositschemes.Accordingly,the Learned,Tribunalheld that in case this award is not given to any retrospectiveeffectthan the Collectorsofbanlcs,who had closedthe scliemes,wouldnot be eligibleto get anyrehefoutofit. Therefore, the LearnedTribunalhas held that the demandof federation/union lor enhancementof fall back wages and incentive remuneration, besides conveyance allowance is justified. Accordingly, the Learned Tribunal has given the Award retrospectiveeffect from 19 July, 2005,the date when the banks were summonedto appear before the Tribunal.

¶70Admittedly, issue of gratuity was irot part of reference. HoM^ever. learnedTribunalhas held that the respondentswill also get gratuityofRs.4.000/-eve.yyear. It is alsonot in disputethatin case of Bank,- Association, (supra). Hon'ble Supreme Court, held that Deposit Collector can be treated as reguta-employeesof the Bank, thoughthey may be 'workmen'underthe IndustrialDisputesAct. Moreover,there was no pleadingson this issue.

¶71Keepingin viewthe above discussions,Ifind no discrepancy mAwarddated07.10.2013,exceptthe gratuitypart. Accordingly orderon gratuityis herebyset aside. However,libertyis grantedto l'VP(C) No. 757.1/2014 • the respondentsto claim gratuity, if they are entitled, under the PaymentofGratuityAct, 1972 beforethe appropriateforum.

¶72The petitionsare partiallyallowedwith no order as to costs.

¶73All the pendingCMs stand disposedofbeinginfructuous. April 20, 2015 RS/Rita H'TfC) No. 7571/2014 ly HICAIT Page 45 of45 -L iiE

* IN THE HIGH COURT OF DELHI AT NEW DELHI % Judgment delivered on: April 20, 2015 + W.P.(C) 8063/2014 ANDHRA BANK Petitioner Representedby:- Mr. JagatArora& Mr. Rajat Arora, Advocates for the petitioners. versus ALL INDIA BANK DEPOSIT COLLECTORS FEDERATION & ANR Respondents Mr. Inderjit Singh, Advocate for respondentNo.1/Federation. Ms. Rashmi B. Singh, Advocate for respondent No.2. CORAM: HON'BLE MR. JUSTICE SURESH KAIT