Indian Bank v. All India Bank Deposit Collectors Federation & Anr

14. Not wanting to take any chance, the All. India Bank Deposit Collectors Federation and the All India Bank Deposit Workmen Union, who were espousing the cause of the daily Deposit Collectors before the Industrial Tribunal filed an application on January 31, 2005 praying to implead 48 banks as respondents. The said application was allowed on July 19, 2005. 40 banks were impleaded as respondents for the reason 8 out of the 48 banks sought to be impleadedhad ceased to exist and summons were served upon these banks, being: (1) Syndicate Bank, (2) State Bank of Hyderabad, (3) Indian Bank, (4) Vijaya Bank Ltd., (5) Vysya Bank Ltd., (6) Corporation Bank Ltd., (7) State Bank of India, (8) Central Bank of India, (9) Andhra Banlc Ltd., (10) Canara Bank, (11) Tamil Nadu Bank, (12) Allahabad Bank, (13) Bank of Baroda, (14) Bank of India, (15) Bank of LPA No.429/2015 & conn.matters ' Page 15 of43 Maharashtra, (16) Bank of Rajasthan Ltd., (17) Catholic Syrian Bank Ltd., (18) Dena Banlc, (19) Dhana Lakshmi Bank Ltd., (20) Federal Bank Ltd., (21) Indian Overseas Bank Ltd., (22) Kamataka Bank, (23) Karur Vysya Bank Ltd, (24) Lakshmi Vilas Bank Ltd., (25) Lord Krishna Bank Ltd., (26) Oriental Bank of Commerce Ltd., (27) Punjab & Sind Bank, (28) Punjab National Bank, (29) Sangli Bank Ltd., (30) The South India Bank Ltd., (31) State Bank of Bikaner & Jaipur, (32) State Bank of Indore, (33) State Bank of Mysore, (34) State Bank of Patiala, (35) State Bank of Saurashtra, (36) State Bank of Travancore, (37) Syndicate Bank, (38) Union Bank of India, (39) United Bankof India, and(40) United Commercial Bank.

15. The impleaded banks filed a statement of defence; andthe distillate; of X the mixture of the pleadings of the banks was that the Deposit Collectors were called Commission Agents and hence were not the employees of the bank. The banks pleaded that taking into account the payments made to the Commission Agents in terms of the Award dated December 22, 1988 and interest paid to the depositors; after defi-aying the administrative costs and staff costs, the banks were incurring a loss pertaining to the deposits in question. Thus, as per the banks, any revision inthe fall back wages would make the scheme unviable, and that the claim to enhance the fall back wages, linked tothe consumer price index, would besuicidal for the scheme. Some banks raised thepleathattheywere not having any suchscheme. The banks which were impleaded as parties and claimed not to have any such deposit scheme are: (i) Bank ofIndia, (ii) Punjab &Sind Bank (iii) Oriental Banlc of Commerce, (iv) Bank of Baroda, (v) ICICI Bank (after the merger of Sangli Bank Ltd.), and (vi) Allahabad Bank. Two banks: (i) State Bank of Hyderabad, and (ii) State Bank of Patiala closed the daily deposit LPANo.429/2015 & conn.matters 2015:DHC:11315-DB schemes on February 20, 2010 and September 01, 2008 respectively.

16. Shri I.P.Ponnusamy, Shri Ashwani Vijh and Shri Ashish Bilala were examined by the All India Bank Deposit Collectors Federation to substantiate the claim. Shri Ashok Kumar and Shri A.N.Sivanand Babu were examined by the All India Bank Deposit Collectors Workmen Uniomto substantiate the claim. Shri K.Ganesan, Vice President of the Indian Banks Association was examined to establish its defence. Shri Neeraj Gupta. (Assistant General Manager, Punjab National Bank), Shri Satheesh Kumar (AGM, South Indian Bank), Shri JNS Murali (Senior Manager Vijaya Bank), Shri Kusal Pal (Senior Manager, Central Bank of India), Shri L.Maklcad (Manager (P), State Bank of Bikaner and Jaipur), Shri Shyamal 4^, Kumar Singh (Chief Manager, Indian Bank), Shri C.M.Duggal, (AGM, Federal Bank), Shri Ajit Kumar Srivastava, (Manager (Law) Canafa Bank), Shri Sunil Prakash (Assistant Manager (Law) Union Bank of India), Shri Arun Kumar Tyagi (Deputy General Manager, Syndicate Bank), Shri Sudershan D.Sheth, (Chief Manager, Kamataka Bank), Shri Joginder Pal Bhagat (Chief Manager, UCO Bank), Shri Anil Kumar Y (ChiefManager, State Bankof Travancore), Shri R.Venkatesh (ChiefManager, State Bankof Hyderabad) and Shri P.Venugopal (State Bank of Hyderabad) wbre examinedby the banksto sustaintheir defence..

17. Vide Award dated October 07, 2013, with reference to Issue No.2 settled by the learned Industrial Tribunal, which has been noted by us; in paragraph 13 above, the learned Presiding Officer ofthe Industrial Tribunal held, that inview ofthe fact that the individual banks likely to be affectedLy the award were impleaded as parties on July 19, 2005, the said issue became a non-issue i.e. what was the consequence of there being no privity; of LPA No.429/2015 &conn.matters 17of43 X /• contract between the concerned workmen and the Indian Banks Association.

18. Referring to the definition ofan industrial dispute>as per Section 2(k) of the Industrial Disputes Act, 1947 and the definition of a workman as per Section 2(s) of the said Act; noting various judgments of various courts on the scope of what would be an industrial dispute and who would be a workman, the Industrial Tribunal held that the Deposit Collectors were workmen and the dispute which they had raised concerned their wages and hence was an industrial dispute. The Industrial Tribunal discussed resjudicata, and with reference to the earlier litigation terminating in the opinion ofthe Supreme Court in which it was held that the daily Deposit Collectors are workmen and the remuneration received by them, called commission, would qualify to be awage; the Tribunal reinforced its decision that these Deposit Collectors/Commission Agents were workmen.

19. The Industrial Tribunal thereafter noted various decisions concerning the power of an Industrial Adjudicator and concluded that an Industrial Adjudicator had very wide powers, to even vary the terms agreed to between the management and the workmen while settling the wages payable and conditions of employment.. - 20l Proceeding to note the evidence and the contention ofthe Union and the Federation in para 119 ofthe award and terminating the discussion in paragraph 166, succinctly noted by us the Tribunal highlighted that minimum wages were increased from tinie to time and that the concept ofa minimum wage was by taking -into account that the family of a workman would comprise three units, the husband and the wife as one unit each and two children constituting one unit. Daily, calorie intake of2700 calories for an average adult, clothing requiring 72 yards ofcloth per family. Minimum 2015:DHC:11315-DB rent for housing and miscellaneous expenses for fuel etc. Wages of regular employees ofthe bank increased during this period which was fl,228/- per clerk in the year 1980 having gone up to. fl 2,064/- per month as of the year

2001. Consumer price index, with base 100 as of the year 1960 which vyas 500 points as of the year 1980 having crossed 4400 points. The profits earned by the banks during the year 2005-06 and 2006-07. The Tribunal noted that a fair wage had to relate to the work load and a minimum remuneration so that a workman living in a modernized civilized society had sufficient means to sustain himself and the family. The Tribunal tabulated in para 150 of the award minimum wages notified on April 01, 2003 for unskilled, semi-skilled, skilled and highly skilled workmen in the fields of X agriculture, stone crushing, sweeping and cleaning, watch and ward, loading and unloading, mining and construction activities. The Tribunal also noted minimum wages notified by the Government of Delhi as on April 01, 2013 for various scheduled employments. The Tribunal noted that areas were classified into category 'A' 'B' and 'C.

21. The Industrial Tribunal recognized that the point ofview of the baiiks had to be kept in mind, and for which we may highlight para 126 of the Award, in which the Tribunal recognized that the following counter balancing circumstances have to be taken into account:r-

(i) Unreasonable inroads into the profit ofthe employer may have the tendency to drive the capital away from the fruilful improvement and may prejudicially affect the capitalformation.

(ii) Wage-structure, which is beyond the financial capacity of the employer, may lead to the closure ofthe industry itself LPANo.429/2015 & conn.matters Page 19 of43 2015:DHC:11315-DB v.- ^7 (Hi) Wage structure, being a long range plan, a long range view of the financial capacity of the industry should be taken into consideration.

(iv) For considering increase in the wage, increase should be correlated to minimum wage, in relation to financial capacity ofthe industryto bear the burden.

(v) Effect ofincrease on other similar industries in the region, should be taken into consideration, i.e. a wage structure should take into consideration on industry cum region basis, after giving careful consideration to the ability of the industry to pay.

(vi) Total pay packet of the workmen, including dearness allowance, other allowance and other benefits enjoyed by them.

(vii) Effect of rise in prices, resulting from the rise in wages, which may affect other members of the community and even prejudicially affect living conditions of the workmen themselves. (via) The effect of the rise in process on the international trade \ ofthe country.

22. Thereafter in paragraphs 155 to 179 the Tribunal discussed the concept of a permanent employee, a temporary employee and a part time employee and that on April 27, 2010, the 9^^ Bipartite. Settlement was arrived at between the association of the banks and the various unions, as per which apart time employee was one who worked for three hours aday; fixing wage ofsuch employee at 1/3'"'^ ofthe scale ofpay in which aregular employee was to be paid wages. The Tribunal thereafter noted the pay scales of clerical staff and subordinate staff to bring home the point that as 2015:DHC:11315-DB per the bipartite settlement a clerical staff who had put in 20 years' service would receive basic pay in sum of fl 9,300/- and a subordinate staff would receive basic pay in sum of 1,350/-. On this standard the Tribunal held in para 158 that the fall back wage would therefore come to ^,400/- per month, being 1/3'''^ of what would be received by a regular employee performing clerical duties. This being the basicpay, the Tribunal notedthat other allowances (not mentioned in the award, but obviously wouldbe house rent allowance, city compensatory allowance and travelling allowance) would also be payable. The Tribunal thereafter noted the financial capacity of the banks and tabulated the same in paragraphs 175 to 180 of the award. Thereafter, the pith and substance of the reasoning of the Tribunal was

LPANo.429/2015 &corm.matters Page21 of 43 ^1 above witnesses, relating to quantum of collection made by them, make me to conclude that a deposit collector in 'C area city would be able to collect at least a sum of lacs per monthfrom,the account holders. A deposit collectorfrom 'B' area- city camcollect a sum of ^4 lac, while a deposit collector from 'A'area city would be able to collect a sum of lacsper monthfrom the account holders. Resultantly, a minima ceiling ofcollection of ^ lac for 'C area city, ^4 lac for 'B' area city and lacper monthfor 'A'area city is to befixedfor the: deposit collectors. On a collection of f[3] lacper month, the bank is required to retain roughly an amount of ^0,000.00 towards cash reserve ratio and statutory liquidity ratio. A sum of ^,10,000.00 would be available with the bank for. investment through advances to the generalpublic. On this amount, the bank had to spend 5% as its cost. The bank may advance that amount at an interest rate of 14% per annum. ^ When cost ratio ofthe bank is deducted, the bank earns 9%) interest approximately per annum on the amount referred above. Cost ratio ofthe bank on the amount keptfor CRR and SIR would be neutralized by the earnings of the bank on statutory liquidity ratio. Thus, an amount of T[2],l0,000.00 per month, so collected by the deposit collectorfor a year, would fetch an earning of ^1,22,885.00 to the bank. Out of this earning, a sum of ^000.00per month would be awarded as fall back wages to the deposit collectors working in 'C area cities. In a year, he will get T4000.00 as gratuity. Thus, in a 'C area city, the bank had to spend on fall back wages and gratuity, asum bftl lac out ofthe earning offl,22,850.00.

184. On^collection over andabove & lac, but upto T[5] lac, a, deposit collector would get an incentive remuneration of3% and on collectionover and above ^5 lacper month, he willget incentive remuneration of 2% only. Therefore, a deposit collector of B' area city who had to collect a minima of ^4 lac per month, will get fall back wages of fSOOO.OO besides incentive remuneration of ^000.00 a month. His pay packet would come to T11000.00 in a month, besides a gratuity of ^4000.00 a year. LPA No.429/2015 &conn.matters of43 X

185. A deposit collector in A' area city shall collect a sum of lac per month. His pay packet would be ^000.00 as fall ' hack wages and ^6000.00 as incentive remuneration, besides a gratuity of ^4000.00 in a year. If deposit^ collectors of any area collects over and above T[5] lac in a month, he will get incentive of2% on that amount. Thus, by collecting more than ^5 lacs in a month, the deposit collectors may earn more. The amount, which will come to them towardsfall back wages and incentive remuneration, would be over and above the minimum wages, so notified. By making that payment to the deposit collectors, the banks would not be strainedfinancially at all. The fall back wages and incentive remuneration, as referred above, can well be compared to the wages earned by a deemed part time clerical staff, employed in the bank and the minimum wagesfixedfor skilled clerical staffin scheduled employments.

186. One may advance argument that fixation of minima amount to be collected by the deposit collections of 'C' area, • 'B' area and A' area city is a concept not prevalent in the banking industry or any comparable industry. However, that proposition is not factually correct. The insurance industry employs development officers on its role, who are paid wages and incentive on the basis of their performance. Life Insurance Corporation of India Development Officers (Revision of Certain Terms and Conditions ofService) Rules, 1989 and General Insurance (Rationalization of Pay Scales and Other Conditions of Service of Development Staff) Amendment Scheme, 1987 provide an example in that regard. When these rules and schemes are scanned, it emerges over the record that the development officers, employed in insurance industry, are paid wages and incentive in accordance with the performance made by them. In case they fail to meet required standard of collection, incentive paid to them is deducted or stopped and decrements are made out of their wages. When a development officer continues not to attain the criteria fixed for him, his services' are dispensed with. Therefore, it is evident that minima ofcollection asfixed for the deposit collectorsfor respective areas cannot be said to be a new concept. Minima of lac in a monthfor 'C area. A ^4 lac for 'B' area and ^5 lac for 'A' area is the standard requirement ofperformance, expected ofa deposit collector to sustain himself in the industry. He can meet that standard by collection of that amount in every month or by way of collection of ^ lac, T12 lac and fl[5] lac respectively, as the case may be for area-wise, at the end of the quarter ending 3r' March, 30''^ June, 30''^ September and3r' December every year. In case a deposit collector is unable to collect the minima amount consecutively for two quarters, he would be bade farewell by the bank by terminating his contract of service. An inefficient person has no place in the industry. In case offailure of a deposit collector to meet the required standards, he would not be able to serve the bank, since his. retention at the cost ofloss to the bank is unwarranted.

187. Conveyance allowance is being paid to the deposit collectors at fSO.OO per month for deposit of less than H0,000.00 and at h00.00 per month for deposits.of H0,000.00 or above upto is0,000.00 per month. This quantum of -conveyance allowance was demanded by the. Federation, when it filed its claim before the Industrial Tribunal, Hyderabad in the year 1981. The Industrial Tribunal granted that relief in toto and fixed conveyance allowancefor the deposit collectors at the above rates. Since 1981 till date, prices ofpetrol has rolled many a times. It is a matter ofcommon knowledge that the deposit collectors had to reach persons of lower and middle income group, small traders, businessman, artisans, self-employed persons and housewives.to collect money from them. A green grocery vendor sitting in subzi-mandi would like to give money to a deposit collector in early hours of the day, housewives would give their money during noon hours, when they are free from daily chores, a small trader or businessmen would give money in the evening, whilepersons employedin business centres and courts etc. may like to deposit their money during day hours. These facts bring it to light that a deposit collector has to reach his customer, according to the convenience ofthe latter. For that purpose, possibility ofgoing for collection twice or thrice a day cannot be ruled out. One cannot dispute hat in LPA No.429/2015 & conn.matters 'C area as well as 'B' area cities, the deposit collectors may have to travel in a radius of 10 kms daily. In 'A' area cities, he may travel a little bit longer. One. cannot be oblivious of thefact that these days such bikes are in the market which are fuel efficient. Manufacturers claim that such bikes havefuel efficiency of running generally 60 kilometers per litre. A deposit collector in 'C' and 'B' area cities may have to travel roughly 500 kms in a month. For A' area-city, a deposit collector may avail public transport also. Conspectus of all thesefacts makes me to comment that atleast 8 to 10 litres of petrol in a month is to be spent by a deposit collector., Keeping all these facts in mind, I am of>the view that conveyance allowance of ^50.00per month atflat rate should be grantedto all deposit collectors ofall areas.

188. On above standard, a deposit collector would get a sum of ^000.00 in a year towards conveyance allowance. Adding that amount to the cost incurred on a deposit collector for. collection of f[3], lac, the bank had to spend only a sum of ^6,000.00 on fall back wages + ^4000.00 on gratuity + ^000.00 as conveyance allowance. In all, banks have to spend a sum of ^1,09,000.00 out of the earning of h,22,850.00. This arithmeticprojects that bypayment ofthat much of amount, the bank would earn something on acollection of lac per month by a deposit collector of 'C area city. Earning of the bankwould be more on collection of deposit collectors of B' area and A' area cities. When deposit collectors would collect more than the minima prescribedfor them, the income ofthe bank would grow more. Arguments of the bank relating to economic-viability of the scheme would have an answerfrom the above reasoning.

189. The Tribunal haspower togive retrospective effect to its award, as held by the Apex Court in New Edgeson Woollen Mills (1969(2) LLJ 782) and Sarva Shramik Sangh, Bombay (1993 Lab.IC.870). It is a well establishedproposition oflaw that an industrial adjudicator can treat the date ofdemand and the date on which he award comes into forces' as two extreme points to give effect to the award. The date from which this LPANo.429/2015 & conn.matters Page 25 of43 -3-3 award would be ejfective, should be decided by the Tribunal on consideration offacts and circumstances projected herein., As award Ex.WWl/3 highlights, fixation offall back wages and incentive remuneration was based on the circumstances prevalent in the year 1981. Thefall back wages and incentive remuneration fixed by award dated 22.12.1988, remained static till date. The present dispute was ' raised by the Federation in the year 2003. After raising ofthe disputes and. during the course of adjudication a few of the banks closed their small deposit schemes. In case this awtird is not given any retrospective ejfect, then the deposit collectors' of the banks, who had closed the scheme, would not be eligible to get any reliefout ofit. Therefore, I am ofthe considered opinion. that this Tribunal should give retrospective effect to the award so that the deposit collectors, whose case was projected before, the Tribunal, may also avail their rights so adjudicated herein. In view of the above discussion, it is concluded that the demand ofthe Federation/Unionfor enhancement offall back wages and incentive remuneration, besides conveyance allowance isjustified. The issue is answered, accordingly. Relief

190. In view of the findings recorded on issue No.1, it is ordered that deposit collectors operating in 'A' area, 'B' area - and 'C area cities would collect at least T[3] lac, T[4], lac and lac per month respectively. They can meet the target every month or may collect a sum of f[9] lac, fl[2] lac and ^15 lac respectively on 3f' March, 30^^ June, 30^^ September and 31^' December every year. On a collection of lac, a deposit collector would get fall back wages of ^000,00 per month, besides conveyance allowance of ^50.00 per month. He will ' also get gratuity of T4000.00 every year. On a collection of • over and above ?3 lac and upto T[5] lac, all deposit collectors, irrespective of their areas of operation, will earn incentive remuneration of3%. Thus, a deposit collector of 'B' area and A' area city would get ^000.00 and fbOOO.OO respectively per month as incentive remuneration on minima limit of their collection. On collection ofover and above ^5 lac, a deposit A collector would get incentive remuneration of2%. All deposit collectors, irrespective of areas of their operation, would get conveyance allowance atflat rate of f750.00 per month. "

23. As per the direction in para 192 ofthe award, the same has been made operative retrospectively from July 19, 2005 i.e. the date when the 40 banks were impleaded as respondents.

24. A,correction was thereafter made by the Tribunal to its award by an order dated June 02, 2014; recording therein that instead of Collectors operating in areas 'A', 'B' and 'C collecting ^,00,000/-, ?4,00,000/- and ^,00,000/- respectively per month as per the award', it should read Collectors operating in areas 'C, 'B' and 'A' respectively. The reason is obvious. The Tribunal inverted the reference to the category of the area and the minimum deposit in the award.

25. The direction in the award concerning payment ofgratuity to the,daily Deposit Collectors having been set aside by the learned Single Judge vide impugned order dated April 20, 2015, by which order a batch of writ petitions filed by various banks have been disposed of. Rest of the award has been upheld by the learned Single Judge.

26. In the appeals we are thus concerned with the impugned award as upheld by the learned SingleJudge concerning fall back wages.

27. We could terminate our discussion, and perhaps would have been justified in recording said aspect of the matter in the very first paragraph of our opinion, and dismiss the appeals, by noting one simple fact. The same would be that on a minimum deposit collected by a Deposit. Collector of ^.,00,000/- per month, as per the award dated December 22, 3.988, which had attained finality when the seal of approval was accorded thereto by the LPANo.429/2015 & conn.matters ' • \ Supreme Court on February 13, 2001, the daily depositor would receive a sum of f750/- per month as the fall back commission on the deposit up to f[7],500/- per month and on the remaining sum of ^,92,500/- (calculated @ 2% ofthe deposit as per the award), would receive a commission of f[5],850/and thus the total amount received would be ?S,600/-. As per the impugned award dated October 07,^- 2013, the fall back wage would be ^,000/- for a deposit of ?3,00,000/- per month. The difference is fl,400/-. On the base ^,600/-, the percentage increase in the fall back wages is only 21.22%. It would be perhaps ridiculous, and we use the expression with an apology, to argue that an award rendered in the year 1988 determining fall back wages by faking into account cost of living, as of the said year should continue to operate indefinitely in the future, ignoring the rise in the cost of living and hence updation of the wages to be received on the concept of a fair wage to 'be receivable by a workman for the work done; benefit ofwhich work would be to the employer. Surely, since the year 1988 the cost of living has increased by 21.22% over 17 years. This should be reason enough to dismiss the appeals.

28. Be that as it may we proceed to note that in the appeals learned counsel for the appellants did not dispute that the status ofthe daily Deposit Collectors as workmen has attained finality in view of the decision of the Supreme Court reported as (1998) I LLJ 23 (AP) Indian Banks Association Vs. Workmen of Syndicate Bank & Ors. Further, learned counsel had to concede that the payment received by the daily Deposit Collectors has to be treated as a wage in view of the said decision. Though a subtle attempt was made to urge that in view ofthe said decision ofthe Supreme Court the daily Deposit Collectors were accorded status of a workman only for the purposes LPANo.429/2015 & conn.riiatters > of giving them a locus to collectively bargain, but the argument was taken no further except for raising it as a point, sans any justification for the point.

29. In view of the decision reported as (1981) 1 SCC 315 LIC Vs. D.J.Bahadur wherein the Supreme Court observed that the Industrial Disputes Act, 1947 is a benign measure which seeks to pre-empt industrial tension, provide the mechanics of dispute resolutions and set up the necessary infrastructure so that the energies of the partners in production may not be dissipated in counter-productive battles and the assurance of the industrial justice may create a climate of goodwill, as also the earlier decision of the Supreme Court reported as AIR 1950 SC 188 Bharat Bank Ltd. Vs. The Employees ofBkarat Bank Ltd., in which the Supreme Court X observed that in settling the disputes between the employers and,the workman, the function of the Tribunal is not confined to administration of justice in accordance with law and that the. Tribunal can confer rights and privileges on either party which it considers reasonable and proper, though theymay not be within the terms of anyexisting agreement, learned counsel for the appellants didnot even make an attempt to urge, a point which they had urged before the learned Industrial Tribunal and the learned Single Judge, that the Tribunal didnot have the power to adjudicate the reference.

30. Four contentions were urged by learned counsel for the appellants in the appeals. The first contention urged was that the very reference of the industrial dispute to the Industrial Tribunal was vitiated in law because the A unions ofthe daily Deposit Collectors and the Federation ofthe unions had raised the demand on the Indian Banks Association and for said reason, before the ConciliationOfficer, the banks were denied a right to put forward their case. The argument was that it ispossible thatthe Conciliation Officer, LPANo.429/2015 & conn.matters. Page29 of 43 2015:DHC:11315-DB after taking note of the case presented by the banks may have persuaded the unions and the Federation not to press the claim. The second contention urged was that the Industrial Tribunal was bound by the terms of the reference and could not traverse beyond the same in view of the law declared by the Supreme Court in the decisions reported as (1968) 1 SCR 515 Sindhu Resettlement Corporation Ltd. Vs. Industrial Tribunal and 1972 (25) FLR 26 Jaipur Udvo[2] Ltd. Vs. Cement Work Karamchan Sansh. The third contention urged was that the award has rendered the daily Deposit Collection Scheme unviable, and for which argument it was agreed between learned counsel for the parties that the data provided by all the banks concerning cost benefit analysis of the schemes as was discussed in the JX, award need not be captured; it being restricted to only two banks: (i) Indian Banlc, and (ii) United Commercial Bank. Referring to the testimony of Sh.K.Ganesh MW-1 and the cost benefit analysis MW-1/1 to MW-1/9 ofthe daily Deposit Scheme (which we note comprises the data concerning 9 banks, including Indian Bank and United Commercial Bank, with the one concerning Indian Bank being MW-l/l and United Commercial Bank being MW-1/9) proved by the witness, it was urged that notwithstanding the Tribunal noting in para 126 of the award the perspective from which the Tribunal had to approach the issue, and conceding it to be a correct perspective, the error committed by the Tribunal; was to overlook the financial stress beyond the capacity ofthe banks, and- for which the decision ^ of the Supreme Court reported as (2003)

II LLJ 1078 A.K.Bindal Vs. UOI was relied upon. Fourthly and lastly, it was urged that notwithstanding the Tribunal having the power to give retrospective operation to the award, it •fell into error in the instant case to give retrospective operation to the award LPA No.429/2015 &conn.matters Va.gQ 30 of43 2015:DHC:11315-DB...A n with effect from July 19, 2005. The argument was premised on the reasoning that as per the award the requirement: of minimum monthly deposits in category 'C, 'B' and 'A' areas was increased to 00,00.0/-, ^,00,000/- and ?5,00,000/- respectively with a further conditions that if targets were not achieved by the daily Deposit Collectors in two consecutive quarters, the banks would be justified in terminating their contract of service. The contention advanced was that since the banks had continued to availthe services of the dailyDepositCollectors and had paid them fall back wages as,also commission in terms ofthe earlier award dated December 22, 1988, it was not possible for the banks while implementingthe instant award to retrospectively terminate the services retrospectively and make recoveries.,31. As per Section 4 of the Industrial Disputes Act, 1947, Conciliation Officers have to be appointed by the appropriate Government, charged with the duty of mediating in and promoting the settlement of industrial disputes and as per Section 5 of the Act if an occasion arises the appropriate Government may constitute a Board of Conciliation for promoting the settlement of an industrial dispute. As per Section 10 of the Act, before referring an industrial dispute to a Labour Court or an Industrial Tribunal, the appropriate Government may refer the dispute to the Board •of Conciliation for settlement. The concept of espousal of causes -in representative capacities is recognized by the Industrial Disputes Act, 1947. The Indian Banks Association is admittedly a federal body of all the banks. When summoned by the Conciliation Officer the said Association did not take a stand that it was not the body competentto represent and put forth the point of view of the banks. Had the Association taken said stand before the A r Conciliation Officer, the Conciliation Officer could have summoned the individual banks for purposes oftrying out a settlement during conciliation. The first argument is thus sans any legal foundation; additionally for the reason an irregularity in the conciliation proceedings^ is of no consequences because the issue between the parties ultimately got resolved before; an Industrial Tribunal after evidence was led and befote that all banks were permitted to file their written statement ofdefence tofthe statement of claim filed.by the Unions ofthe workmen and the Federation ofthe Unions.

32. Pertaining to the second contention. advanced i.e. the Industrial Tribunal has exceeded its briefby going beyond the-terms of the reference, we begin our discussion by referring to paragraph 11 ofour opinion wherein we have reproduced the reference made to the Industrial Tribunal on August 06, 2003. The reference inter-alia is whether the demand of the daily Deposit Collectors Federation, based on linkage offall back wages of f750/per month determined by the award dated December 22-, 1988 to the consumer price index at 500 points (base 1960 —100) to the present consumer price index and upward revision is justified. Learned counsel urged that in para 165 ofthe award, the learned Labour Court has returned a categoric finding to the effect that the award dated I)ecember 22, 1988 was not premised on the consumer price index. Thus, it was urged that the IndustriaLTribunal ought to have answered the reference by opining that since the award dated December 22, 1988 was not linked to the consumer e '' price index as urged by the workmen, their Union arid the Federation ofthe Union, the demandwas unjustified.

33. The argument is too tenuous since it is based upon aplay of words. We could do no better other than to reproduce the reasoning ofthe Tribunal LPANo.429/2015 & corm.matters 2015:DHC:11315-DB. Uo ] for the conclusion arrived at by the Tribunal (on which conclusion the argument was premised) and the further reasoning ofthe Tribunal as a t^ke / off point towards its destination in para 166 of (he award. The two paragraphs read as under "7(55. Except the above treatment to alternative reliefs of the Federation, the Tribunal nowhere linked reliefoffall back wages and incentive remuneration to All India Consumer Price Index. As detailed above, the Tribunal had not linked fall back wages and incentive remuneration to bepaid to the deposit collectors to All India Consumer Price Index. When High Court of ' Andhra Pradesh exercised powers of judicial review, none ofthe parties raised the issues to the effect thatfall back wages and incentive remuneration were linked to All India Consumer Price Index. Therefore, there was no occasionfor the High Courtto consider as to whether fall back wages and incentive remuneration were linked with All India Consumer Price Index or not. The Apex • i Court too was not invited to delve the issue thatfall back wages andincentive remuneration, awarded infavour of the deposit collectors, were linked to All India Consumer Price Index.' In the reference order, the appropriate Government tried toproject that thefalLbackwages and incentive remuneration, granted infavour ofthe deposit collectors, have linkage with All India Consumer Price \ Index. However, the mist created.therein in the reference order melts away when award dated 22.12.1988 and findings of the Andhra Pradesh High. Curt and the Apex Court, while makingjudicial review, are noted. Resultantly, it is concluded that fall back ^ Wages and incentive remuneration awarded to the f. deposit collectors, have no linkage with All India Consumer. Price Index.

166. As noted above, a deposit collector is paid fall | back wages of T750.00 oh a collection of T7500.00 per LPANo.429/2015 &conn.matters Page 33of43 • M/ month, besides incentive remuneration of 2% on collection over and above ^500.00per month. In case a deposit collector collects a sum of & lacs per month, he gets only a sum of ^6600.00 (^50.00 asfall back wages plus ^5850.00 as incentive remuneration).. Collection of a sum of ^ lacs per month is moderate amount. but fall back wages and incentive remuneration, which would come in the hands of a deposit collector would be less than minimum rates of wages, notified for a matriculate clerk. Evidently, fall back wages and incentive remuneration are not part of wage structure in technical sense, but nomenclature of fall back wages and incentive remuneration, given to wage packet of a deposit collector, would not denude this Tribunal of its obligation to fix a pay packet corelative to minimum wages, notifiedfrom time to time. Therefore, the Tribunal wouldproceed aheadto devise^a wage structure in the form b/ fall back wages and incentive remuneration for the deposit collectors, which should not be less than the minimiim wages, so notified, from time to time. "

34. Claims have to be read meaningfully and not pedantically. References made to the Labour Court or Industrial Tribunals have likewise to be read meaningfully and not pedantically. At base was the demand for a revision ofthe fall back wages. While raising the demand, the justification given was the increase in the consumer price index and the linkage was to the fact that in the award dated December 22, 1988, while fixing the fall back wages, the consumer price index at 500 points yvith base year 1960 at 100 points was the basis for the award. The Industrial Tribunal, while considering the demand for increase in fall back wages was therefore entitled to decide on the justification ofthe demand, and merely because the factor justifying the demand was found to be wrong, did not result in the LPA No.429/2015 &conn.matters 43 2015:DHC:11315-DB ki^_ Tribunal, being without any power left in it to look at some other factor justifying the demand. The two decisions relied upon by learned counsel for the appellants which we have noted while noting the contentions of the counsel for the appellants in para 30 above, merely hold that being the creature of the reference an Industrial Tribunal cannot travel beyond the reference. The proposition of.law stated therein has not been breached by the Tribunal in the instant case. The second contention advanced is rejected.

35. Concerning the third contention advanced, as we have noted above, in para 126 of the award the Tribunal recognized the principles to be kept in mind from the perspective of the employer while fixing a fair wage and to said extent the principle of law laid down by the Supreme Court in A-K-BindaVs case (supra) has been kept in inind by the Tribunal, a fact conceded to by learned counsel for the appellant. The argument was that the evidence on said aspect of the matter was ignored by the Tribunal,or alternatively the finding returned by the Tribunal is perverse.

36. We have already noted herienabove that the Tribunal has discussed the relevant evidence in paragraphs 129 onwards till paragraph 154 of the award, and we find that the Tribunal has discussed the evidence led by the Indian Banks Association and the individual banks. While noting the contention advanced by learned counsel for the appellant on the financial stress, in-para 30 of our opinion we have already noted that it was agreed by learned counsel for the parties that cost benefit analysis of the daily deposit schemes may be looked into by us with reference to two banks; (i) Indian Bank, and (ii) United Commercial Bank, with reference to the testimony of Sh.K.Ganesh MW-1 and the cost benefit analysis MW-1/1 and MW-l/9;of the two banks. H[3]

37. In his affidavit by way of evidence, Sh.K.Ganesh^has simply deposed: ""The deponent annexes herewith the copies of the cost benefit analysis studies conducted by the various banks which, would show that the deposit schemes are not remunerative for the banks and as such it is becoming difficultfor the banks to continue the same'. The cost analysis benefit of various banks have been filed along with the affidavit. Concerning Indian Bank, the cost analysis benefit isEx.MW-1/1. It istabulated as under:- Cost-Benefit analysis ofthe Tiny Deposit Scheme (As on 3March. 2011) i Particulars (Amount in Lakhs) a Aggregate deposits under thescheme 3913.00 b No. of Deposit accounts 33,400 c Commissionpaid to deposit collectors 118.03 d Interestpaid on deposits under the scheme

26.48 • COSTBENEFITSTUDY Particulars Total per year (fin lakhs) Per TlOO/- of Avg.Deposit T BENEFITS a Income from CRR b - Income from SLR 73.76 1.88. c Yield on Advances 286.47 7.32; Total Benefits 360.23 9.20 - COSTS a Interest paid 26.48 0.67 b Commission paid to Deposit Collectors

118.03 3.01 LPANo:429/2015 & conn.matters Page 36 of43 A N c StaffCost 321.71 8.22 d. Other operating cost 70.64 1.80 Total Costs 536.86 13.71

NET BENEFIT (-) 176.63 • (-)4.51 The cost analysis benefit Ex.MW-1/9 concerning United Commercial Bank reads as under CostBenefitAnalysis ofLaghu Bachat Yojna (basedonfiguresfor theyear 2004-05) Ifthe deposit Collectorsfederation demands are accepted BASIC DATA Particulars (Amountin T Lacs) a. Average deposits under the scheme 21502.00 h. Commissionpaid to deposit collectors 886.47., c. Interestpaid on deposits under the scheme 1039.50

COSTBENEFITSTUDY PARTICULARS Totalper year Per fl 00/of Avg.Deposit Benefits f f a. Income from CRR 15.05 0.07 h. Income from SLR 448.32 2.09 c. Yield on Advance 1194.99 5.56 d. Yield on investment of Surplus Deposits - — Total Benefits 1658.36 7.72 Costs a. Interest paid 1039.50 4.83 h. Commission paid to 886.47 4.13 •x ifj deposit collectors c. Conveyance' paid to Deposit Collectors

56.45 0.26 d. Gratuity paid payable to deposit Collectors

36.93 0.17 Cost ofLBYDeposit 2019.35 9.39 e. Operating Cost i.e. staff cost and other cost 3%

645.06 3.00 Total Cost 2665.41 12:39

38. When cross-examined, Sh.K.Ganesh, who had exhibited his affidavit by way of evidence as MW-l/A, deposed:- "Ex.MW-l/A is based on my personal knowledge as well as information gathered from other sources. Contents ofpara VIII, IX and X of my affidavit are based on information gathered from the documents in possession of Indian Banks Association. Those documents are not placed in record ofthis Tribunal. I have not brought those documents along with me today. It is incorrect that no documents are in possession of Indian Bank Association and I have made a false statement in contents of the above referred paragraphs. It is incorrect that Ex.MW-1/1 to Ex.MW-1/9 are prepared only with a view tofile the same before this Tribundl. As per information collected 10274 deposit collectors were working in the year 2007 with various Banks. I have no information as to how much amount. was beingcollected by them. From the contents ofEx.MW-1/1 to Ex.MW-1/9 I sway that deposit collectors schemes are not remunerative. "

39. Relevant would it be to highlight that the primary documents on which Ex.MW-1/1 and Bx.MW-1/9 were tabulated were neither filed nor produced by the witness of the banks. The banks are thus guilty of withholding the best evidence and in our opinion we would be justified;in drawing a presumption against the bank keeping in view clause (g) to 2015:DHC:11315-DB. t// Section 114 of the Indian Evidence Act, 1872. That apart, let us highlight MW-1/1, the cost benefit analysis concerning Indian Bank, which we have noted in paragraph 37 above. As per the same, as ofMarch 31, 2011 atotal sum of ^9.13 crores was lying in deposit with Indian Bank under its Tiny Deposit Scheme. The outgoing reflected is commission paid to the Deposit Collectors in sum of fl.l803 crores and interest to bq paid to the depositors under the scheme in sum of ?0.2648 crores. As perThe statement, interest which the bank would earn from the SLR to be maintained and advances,to the customers of the bank would be ^.6023 crores.. As per the bank the staff cost to the bank would be f[3].2171 crores and other operating costs would be ?0.7064 crores. The net loss shown is ?1.7663 crores. We had repeatedly put itto the learned counsel for the appellant as to, on what basis the banlc had allocated ^.2171 crores as the staff cost relatable to the scheme and ?D.7064 crores as theoperating cost. There was no reply. It has to be kept in mind that the Deposit Collectors not only make entry in the pass book of the customers when they collect the daily amounts but also make entries in the corresponding ledger account of the customer maintained by.the bank. Ex-facie the figure of ^.2171 crores as staffcost to the bank for the scheme is highly exaggerated, not;only for said reason of it being ex-facie exaggerated, for the primary reason: that the banks did not produce tile primary documents nor gave justification[for said apportionment vis-a-vis:the total staffcostandthe quantum of works performed bythe staff for the other operations of the bank, we are of the opinion that the view taken by the Tribunal that the scheme would not become inoperative if for back wages are increased is correct. There is no perversity in the appreciation of evidence noristhere any oversight of any relevant evidence., 2015:DHC:11315-DB: i

40. The last contention urged merits acceptance. The reason being that under the award the Tribunal has, within its power reworked the financial package i.e. the fair wage to be received by the daily Deposit Collectors as a fair wage simultaneously link in the same to the quantum of work,to be performed, in the form ofminimum targets to be achieved. Whilst it may be true that the Tribunal had the power to make its award operative from a retrospective date and has found a rational in the day being the one on which all banks were impleaded as respondents i.e. July 19, 2005, but has overlooked the fact that the repackaged remuneration was linked to higher targets td be achieved with right conferred upon the banks to terminate the contract of service if targets were not achieved in two successive quarters. Now, the banks cannotterminatethe contract of service from a retrospective date and make recoveries. Further, the award is silent on the aspect of: What would be the consequence if the minimum target is not achieved in a month? Would it mean that the daily Deposit Collector would be entitled to a pro rata payment? The answer has to be in the negative for the reason the fall back'wages has been determined by the Tribunal with reference to' the minimum fair wage to be received by the daily Deposit Collectors and for which the underlying reasoning of the Tribunal is that keeping in view the nature of work performed by the daily Deposit Collectors, to achieve the targets set by the Tribunal they wouldhave to work for about 3 hours a day. ' The Tribunal has taken note of the Bipartite Settlement under which part time workers of the bank who worked for three hours a day would receive 1/3'^'' ofthe basic wage payable to a full time employee of corresponding status + other emoluments such as house rent allowance, city compensatory allowance and travelling allowance. Thus, a daily Deposit Collector wbo 2015:DHC:11315-DB r u f does not mtet the target would presumably not be working for three hours a day. The linkage to the fall backwage increase with productivity cannot be snapped. Just as an employee who works for one hour a day cannot claim proportionate wages, the daily Deposit Collectors cannot claim pro-rata reduced fall back wages if they don't meet the target. And we emphasize that as per the Tribunal the banks wouldbe entitledto terminate the contract of such' daily Deposit Collectors, a termination which the banks cannot enforce retrospectively and make recoveries. The retrospective operation of the award would imperil the daily Deposit Collectors as well because they wouldbe under a threat of recoveries. Till the award was pronounced these daily depositors were not working on the assumption that they have to achieve the targets of ^,00,000/-, f^,00,000/- and ?5,00,000/- in category 'C, 'B'-and 'A' areas respectively. Thus, on the facts ofthe instant case the A • rule oftiie game could notbe changed retrospectively.

41. A contention not emanating from the award was sought to be urged. With reference to an additional affidavit permitted to be filed by the learned Single Judge and a statement annexed therewith it was sought to be urged that post the award the daily Deposit Collectors had started misusing 'the. award by rotating the same amount in the name of a customer. The argument was that the scheme worked out under the award as the basis of linking productivity to minimum fall back wages had a serious loophole by ( permitting the daily Deposit Collectors to attain productivity by circulating the deposits. On facts reference could be ihade to; one M.A.Shemeer,-an account holder with Federal Bank Ltd. The data proyided would evince that said Sh.M.A.Shemeer opened account No.10030600087410 with the Federal Bank oh November 08, 2013 and through a daily Deposit Collector tif deposited ^6,400/- with the bank which he withdrew on December 03,

2013. The account remained operative for 25 days. Thereafter another account No. 10030600087600 was opened in his name on December 03, 2013 in which f24,000/- was deposited and after 28 days the account was closed on December 31, 2013. On same day account No. 10030600088111 was opened in his name in which 156,000/- was deposited and after 34 days on February 03, 2014 the account was closed. The very next day i.e.:on February 04, 2014 another account No. 10030600088343 was opened in his name in which ^1,600/- was deposited and after 27 days the account was closed on March 03, 2014. The very next day i.e. on March 04, 2014 account No. 10030600088467 was opened in his name in which ^8,800/was deposited. After 27 days the account was closed on March 31, 2014, On April 04, 2014 another account No. 10030600088855 was opened in his name in which ^6,400/--was deposited and after 25 days on April 29, 20,14 the account was closed. This gentleman opened account NO. 10030600089358 on July 04, 2014 which remained operative for a month. And so on. Many such instances can be found in the tabular statement filed.

42. We find that the learned Single Judge has noted said aspect of the matter but has not dealt with the same. -

43. The answer lies in the fact that when said rotation of money came to the notice'of the bank they immediately took corrective action by issuing circulars fixing minimum duration of an account with penal consequence of premature closure or withdrawal resulting in commission paid to the daily depositor being deducted from the account and we find that in anticipation of rotation of the money, and probably some smart officer in the bank, as many intelligent litigants do from the queries being put by the Industrial Adjudicatorto the counsel when arguments werebeing advancedbefore the Industrial Tribunal, anticipated the award and in the case ofSyndicateBank issued acircular to said effect on June 01, 2013. (The award in question is dated October 07, 2013). We find that post, award AndhraBankhad issued acircular on November 27, 2013 fixing minimum duration of the deposit under its Bhagya Laxmi Deposit Scheme. Other banks have followed, and we need not note the dates on which the banks have issued circulars concerningminimum period ofthe depositto be maintained.

44. We only have to highligjit that the possible mischieffrom the award would not render the award liable to be set aside. The mischiefis ofakind which couldbeprevented, and as amatter offact has beenprevented.

45. The appeals are accordingly disposed of modifying the impugned award dated October 07, 2013, in that, the award is made prospective mits operation. Rest ofthe award as modified by-the learned Single Judge,is upheld.

46. Parties shallbeartheir own costs allthroughout'. ^^ iRMOG) OCTOBER 05, 2015 mamta • (PRADEEP N. JUDGE (MUKTA OTPTA) JUDGE