Southindian Bank Ltd v. Allindia Bank Deposit & Anr

15. The impleaded banlcs filed a statement ofdefence; and the distillate of the mixture of the pleadings ofthe banks was that the Deposit Collectors were called Commission Agents and hence were not the employees of the bank. The banks pleaded thattaking into accountthe payments made to the Commission Agents in terms of the Award dated December 22, 1988 and interest paid to the depositors; after defraying the administrative costs and staff costs, the banlcs were incurring a loss pertaining to the deposits in question. Thus,as per the banks,any revision in the fall back wages would make the scheme unviable, and that the claim to enhance the fall back wages,linked to the consumer price index,would be suicidal for the scheme. Some banlcs raised the plea thatthey were not having any such scheme. 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 ofBaroda,(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 LPA No.429/2015 & conn.matters Page 16 of43 2015:DHC:11316-DB schemes on February 20,2010 and September 01,2008 respectively.

16. Sbri I.P.Ponnusamy, Sbri Asbwani Vijb and Sbri Asbisb Bilala were examined by the All India Bank Deposit Collectors Federation to substantiate the claim. Sbri Asbok Kumar and Sbri A.N.Sivanand Babu were examined by the AllIndia Bank Deposit Collectors Workmen Union to substantiate the claim. Sbri K.Ganesan, Vice President ofthe Indian Banks Association was examined to establish its defence. Sbri Neeraj Gupta (Assistant General Manager,Punjab National Bank), Sbri Satbeesb Kumar (AGM, South Indian Bank), Sbri JNS Murali (Senior Manager Vijaya Banlc), Sbri Kusal Pal (Senior Manager, Central Bank of India), Sbri L.Maklcad(Manager(P), State Bank ofBikaner and Jaipur), Sbri Sbyamal Kumar Singh (Chief Manager, Indian Bank), Sbri C.M.Duggal,(AGM, Federal Banlc), Sbri Ajit Kumar Srivastava,(Manager(Law)Canara Banlc), Sbri Sunil Prakasb (Assistant Manager(Law)Union Bank ofIndia), Sbri Arun Kumar Tyagi (Deputy General Manager, Syndicate Bank), Sbri Sudersban D.Sbetb,(Chief Manager, Kamataka Bank), Sbri Joginder Pal Bbagat(Chief Manager,UCO Bank), Sbii Anil Kumar V (Chief Manager, State Bank ofTravancore),Sbri R.Venkatesb(ChiefManager,State Bank of Hyderabad) and Sbri P.Venugopal (State Bank of Hyderabad) were examined by the banlcs to sustain their 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 Tribubal held that in view ofthe factthat the individual banlcs likely to be affected by 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 Page 17 of43 2015:DHC:11316-DB contract between the concerned workmen and the Indian Banks Association.

18. Referring to the definition ofan industrial dispute as per Section 2(k) ofthe Industrial Disputes Act, 1947 and the definition ofa workman as per Section 2(s) ofthe said Act; noting various judgments ofvarious courts on the scope of what would be an industrial dispute and who would be a worlcman, the Industrial Tribunal held that the Deposit Collectors were workiuen 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 a wage;the Tribunalreinforced its decision thatthese 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 varytheterms agreed to between the management and the workmen while settling the wages payable and conditions ofemployment.

20. 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 time 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 LPA No.429/2015 & conn.matters Page 18 of43 2015:DHC:11316-DB rent for housing and miscellaneous expenses for fuel etc. Wages ofregular 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 ofthe year

2001. Consumer price index, with base 100 as ofthe year 1960 which was 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 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 ofDelhi 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 ofthe banks 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:-

(i) Unreasonable inroads into the profit ofthe employer may have the tendency to drive the capital away from the fruitful improvement and may prejudicially affect the capitalformation. (a) Wage-structure, which is beyond thefinancial capacity of the employer, may lead to the closure ofthe industry itself LPA No.429/2015 & conn.matters Page 19 of43 2^ (in) Wage structure, being a long range plan, a long range view of the financial capacity of the industry should he taken into consideration.

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

(v) Effectofincrease 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 topay.

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

(vii) Effect ofrise in prices, resultingfrom the rise in wages, which may affect other members of the community and even prejudicially affect living conditions ofthe workmen themselves. (via) The effect ofthe 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 a part time employee was one who worked for three hours a day; fixing wage ofsuch employee at 1/3"^^ ofthe scale ofpay in which a regular employee was to be paid wages. The Tribunal thereafter noted the pay scales of clerical staff and subordinate staffto bring home the point that as LPA No.429/2015 & conn.matters Page 20 of43 2015:DHC:11316-DB per the bipartite settlement a clerical staffwho had putin 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 basic pay,the Tribunal noted that other allowances(not mentioned in the award,butobviously would be house rent allowance, city compensatory allowance and travelling allowance) would also be payable. The Tribunal thereafter noted the financial capacity ofthe banks and tabulated the same in paragraphs 175 to.180 ofthe award. Thereafter, the pith and substance of the reasoning of the Tribunal was recorded in paragraphs 183to 190ofthe award,which read as under "i(55. With above standards in mind, the Tribunal thinks it ^ expedient tofix minima limit ofcollection, to which a deposit collector should adhere in all circumstances. For ascertaining that limit of collection, it is to be taken note ofas to what amount ofmoney is being collected by the deposit collector in a month. Shri Ponnusamy unfolds that in the year 1978, he used to collect a sum ofabout ^ lac per month. As on date (he entered the witness box in May 2011), he is collecting a sum ofTl[2] lacs approximately in a month. ShriAshish Bilala declared that he is earning a sum of T12000.00 to f13000.00 ' per month, asfall back wages and incentive remuneration. He deposed in bold words that he is collecting a sum of ' f[6],50,000.00from the account holders per month. According to Shri Ashok Kumar, he collects a sum of Tl,50,000.00 to ?2 lac per monthfrom the account holders. Shri A.K.Shivanand Babu deposed that he collects a sum of ^,50,000.00 to T[3],75,000.00 per month from the account holders. Shri Ponnusamy operates in Chennai, which is A'area city while all other witnesses except Shri Bilala operates in B' area cities. Shri Bilala operates in 'C area city. Facts detailed by LPA No.429/2015 &conn.matters Page 21 of43 2015:DHC:11316-DB above witnesses, relating to quantum ofcollection made by them, make me to conclude thata depositcollector 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 can collectasum of lac, while a depositcollector from 'A'area city would be able to collectasum of^5lacsper monthfrom the accountholders. Resultantly,a minima ceiling ofcollection of ?3 lacfor 'C area city, T[4] lacfor 'B'area cityand ^5lacper monthfor 'A'area city is to befixedforthe deposit collectors. On a collection of lac per month, the bank is required to retain roughly an amount of ^0,000.00 towards cash reserve ratio andstatutory liquidity ratio. A sum of ^,10,000.00 would be available with the bank for investment through advances to the general public. On this amount, the bank had to spend5% as its cost. The hank may advance that amount at an interest rate of14% per annum. When cost ratio ofthe bank is deducted, the bank earns 9%) interest approximately per annum on the amount referred above. Costratio ofthe bank on the amountkeptfor CRR and SIR would be neutralized by the earnings of the bank on statutory liquidity ratio. Thus, an amount of?2,10,000.00per month, so collected by the deposit collectorfor a year, would fetch an earning of Tl,22,885.00 to the bank. Out of this earning, a sum of ^000.00 per 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 onfall back wages and gratuity, asum ofT[1] lac outofthe earning of^1,22,850.00.

184. On collection over and above & lac, but upto f[5] lac, a deposit collector would get an incentive remuneration of3% and on collection over and above ^5 lacper month, he willget incentive remuneration of 2%o only. Therefore, a deposit collector ofB'area city who had to collecta minima ofT4lac per month, will get fall back wages of ^000.00 besides incentive remuneration of T3000.00 a month.,His pay packet would come to T11000.00 in a month, besides a gratuity of T4000.00a year. LPA No.429/2015 & conn.matters Page 22 of43 3-;

185. A deposit collector in 'A'area city shall collectasum of f[5] lac per month. His pay packet would be ?8000.00 asfall hack wages and ^6000.00 as incentive remuneration, besides a gratuity of ^4000.00 in a year. Ifdeposit collectors ofany area collects over and above ^5 lac in a month, he will get incentive of2% on thatamount. Thus, by collecting more than T[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. Thefall back wages and incentive remuneration, as referred above, can well be compared to the wages earned by a deemed part time clericalstaff, employed in the bank and the minimum wagesfixedforskilled clericalstaffin scheduled employments.

186. One may advance argument that fixation of minima am.ount 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 notfactually 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 ofCertain Terms and Conditions ofService) Rules, 1989 and General Insurance (Rationalization ofPay Scales and Other Conditions of Service of Development Staff) AmendmentScheme, 1987provide an exampleIn 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 ofcollection, 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 fixedfor him, his services are dispensed with. Therefore, it is evidentthat minima ofcollection asfixed for the depositcollectorsfor respective areas cannot be said to be a new concept. Minima of lac in a monthfor 'C area. LPA No.429/2015 & conn.matters Page 23of43 T[4] lacfor 'B' area and fJ lacfor 'A' area is the standard requirementofperformance, expected ofa deposit collector to sustain himselfin the industry. He can meet that standard by collection of that amount in every month or by way of collection of lac, H[2] lac and H[5] lac respectively, as the case may befor area-wise, at the end ofthe quarter ending 3f'March, 30'^ June, 3^"September and3fDecember every year. In case a deposit collector is unable to collect the minima amount consecutivelyfor two quarters, he would be bade farewell by the bank by terminating his contract of service. An inefficientperson 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 atthe costofloss to the bank is unwarranted.

187. Conveyance allowance is being paid to the deposit collectors at ^50.00 per month for deposit of less than f10,000.00 and at H00.00 per month for deposits of H0,000.00 or above upto ?30,000.00 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 th^ above rates. Since 1981 till date,prices ofpetrol has rolled many a times. It is a matter ofcommon knowledge that the depositcollectors 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 ofthe day, housewives would give their money during noon hours, when they arefreefrom daily chores, a small trader or businessmen would give money in the evening, whilepersons employed in 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 ofgoingfor collection twice or thrice a day cannot be ruled out. One cannot dispute hat in LPA No.429/2015 & conn.matters Page 24 of43 V area as well as 'B'area cities, the deposit collectors may have to travel in a radius of10 hns daily. In 'A'area cities, he may travel a little hit 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 ofall 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 atfiatrateshould be granted to alldepositcollectors ofallareas.-

188. On above standard, a deposit collector would get a sum of^9000.00 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 ^96,000.00 on fall back wages + C4000.00 on gratuity + f9000.00 as conveyance allowance. In all, banks have to spend a sum of f[1],09,000.00 out of the earning of h,22,850.00. This arithmeticprojects that bypaymentofthat much of amount, the bank would earn something on a collection of O lac per month by a deposit collector of'C area city. Earning ofthe bank would 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 to give 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.I.e.870). It is a well establishedproposition oflaw thatan industrial adjudicator can treat the date ofdemandand the date on which he award comes intoforces as two extreme points to give effect to the award. The datefrom which this LPA No.429/2015 &conn.matters Page 25 of43 X award would be effective, 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 ofadjudication afew ofthe banks closed their small deposit schemes. In case this award is not given any retrospective effect, then the deposit collectors of the banks, who had closed the scheme, would not be eligible to get any reliefout ofit. Therefore,Iam ofthe considered opinion that this Tribunalshould give retrospective effect to the award so that the deposit collectors, whose case wasprojected 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 backwages and incentive remuneration, besides conveyance allowance isjustified. The issue is answered, accordingly. Relief

190. In view of the findings recorded on issue No.l, it is ordered that deposit collectors operating in 'A'area, 'B'area and 'C'area cities would collect atleast f[3] lac, T[4] lac and T[5] lac per month respectively. They can meet the target every month or may collect a sum of T[9] lac, T12 lac and fl[5] lac respectively on 3f'March, 30^''June, 30^^ September and 3F' December every year. On a collection of T[3] lac, a deposit collector would getfall back wages of ^000.00 per month, besides conveyance allowance of T750.00per month. He will also get gratuity of T4000.00 every year. On a collection of over and above T[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 ofB'area and 'A' area city would get T3000.00 and f6000.00 respectively per month as incentive remuneration on minima limit oftheir collection. On collection ofover and above T[5] lac, a deposit LPA No.429/2015 &conn.matters Page26 of43 \ !>3 collector would get incentive remuneration of2%. All deposit collectors, irrespective ofareas oftheir operation, would get conveyance allowance atflatrate of^50.00per month."

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

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 ?3,00,000/-, ^,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 ofthe area and the minimum depositin 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 ofthe 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 Single Judge concerning fall back wages.

27. We could terminate our discussion, and perhaps would have been justified in recording said aspect ofthe 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, 1988, which had attained finality when the seal ofapproval was accorded thereto by the LPA No.429/2015 &conn.matters Page27of43 Supreme Court on February 13, 2001, the daily depositor would receive a sum of ?750/- 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 ^,850/and thus the total amount received would be ^,600/-, As per the impugned award dated October 07, 2013,the fall back wage would be ?8,000/- for a deposit of ^,00,000/- per month. The difference is fl,400/-. On the base ?S,600/-i 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 byfaldng into account cost ofliving as ofthe said year should continue to operate indefinitely in the future, ignoring the rise in the cost ofliving and hence updation ofthe wages to be received on the concept ofa 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 ofthe decision ofthe Supreme Court reported as(1998)I LLJ 23(AP)Indian Banks Association Vs. Workmen ofSyndicate 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 ofthe said decision. Though a subtle attempt was made to urge thatin view ofthe said decision ofthe Supreme Courtthe daily Deposit Collectors were accorded status ofa workman only for the purposes LPA No.429/2015 & conn.matters Page 28 of43 2015:DHC:11316-DB of giving them a locus to collectively bargain, but the argument was taken no further exceptforraising it as a point,sans anyjustification forthe point.

29. In view of the decision reported as (1981) 1 SCC 315 LIC Vs. DJ.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 ofthe industrial justice may create a climate of goodwill, as also the earlier decision ofthe Supreme Court reported as AIR 1950 SC 188 Bharat Bank Ltd. Vs. The Employees ofBharat Bank Ltd., in which the Supreme Court observed that in settling the disputes between the employers and,the worlanan,the.function ofthe 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 they may not be within the terms ofany existing agreement,learned counsel for the appellants did not even make an attempt to urge,a point which they had urged before the learned Industrial Tribunal and the learned Single Judge,thatthe Tribunal did not have the powerto 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 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 Conciliation Officer,the banks were denied a right to putforward their case. The argument was that it is possible thatthe Conciliation Officer, LPA No.429/2015 & conn.matters Page 29 of43 2015:DHC:11316-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 Udvo2Ltd. 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 award need not be captured;it being restricted to only two banks:(i)Indian Bank, and (ii) United Commercial Banlc. 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-1/1 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 ofthe Supreme Court reported as(2003)II DLJ 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 Page 30 of43 2015:DHC:11316-DB 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 ?3,00,000/-, 00,000/- and T[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 avail the services ofthe daily Deposit Collectors 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 implementing the 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 ofindustrial 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 ofall the banks. When summoned by the Conciliation Officer the said Association did not take a stand that it was notthe body competentto represent and putforth the point ofview ofthe banks. Had the Association taken said stand before the LPA No.429/2015 & conn.matters Page 31 of43 2015:DHC:11316-DB yT \ 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 ofno consequences because the issue between the parties ultimately got resolved before an Industrial Tribunal after evidence was led and before that all banks were permitted to file their written statement ofdefence to.the statementofclaim filed bythe Unions ofthe worlanen andthe Federation ofthe Unions.

32. Pertaining to the second contention advanced i.e. the Industrial Tribunal has exceeded its briefby going beyond theterms ofthe reference, we begin our discussion by referring to paragraph 11 ofour opinion wherein we haveireproduced the reference made to the Industrial Tribunal on August 06, 2003. The reference inter-alia is whether the demand of the daily DepositCollectors Federation,based on linkage offall back wages off750/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 thatin para 165 ofthe award,the learned Labour Court has returned a. categoric finding to the effect that the award dated December 22, 1988 was not premised on the consumer price index. Thus,,it was urged that the Industrial Tribunal ought to have answered the reference by opining that since the award dated December 22, 1988 was not linked to the consumer price index as urged by the workmen,their Union arid the Federation ofthe Union,the demand was unjustified.

33. The argument is too tenuous since it is based upon a play of words. We could do no better other than to reproduce the reasoning ofthe Tribunal LPA No.429/2015 & conn.matters Page 32of43 Lf/ for the conclusion arrived at by the Tribunal (on.which conclusion the argument was premised)and the further reasoning ofthe Tribunal as a take off point towards its destination in para 166 of the award. The two paragraphs read as under:- ''165. Exceptthe above treatmentto alternative reliefs of the Federation, the Tribunal nowhere linked reliefof fall 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 be paid to the deposit collectors to All India Consumer Price Index. When High Court of Andhra Pradesh exercised powers ofjudicial review, none oftheparties raised the issues to the effectthatfall back wages and incentive remuneration were linked to All India Consumer Price Index: Therefore, there was no occasionfor theHigh Courtto consider as to whether fall back wages and incentive remuneration were linked with All India Consumer Price Index or not. The Apex Courttoo was not invited to delve the issue thatfall back wages and incentive remuneration, awarded infavour of the depositcollectors, were linked to AllIndia Consumer Price Index. In the reference order, the appropriate Government tried toproject that thefall back wages 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.d[2].I988 and findings of the Andhra Pradesh High Curt and the Apex Court, while makingjudicial review, are noted. Resultantly, it is concluded thatfall back wages and incentive remuneration awarded to the deposit collectors, have no linkage with All India Consumer Price Index.

166. As noted above, a deposit collector is paidfall back wages of TJ50.00 on a collection of T7500.00per LPA No.429/2015 & conn.matters Page 33 of43 2015:DHC:11316-DB.•r month, besides incentive remuneration of 2% on collection over and above ^500.00per month. In case a deposit collector collects a sum of lacsper month, he gets only a sum of ^6600.00 (T750.00 asfall back wages plus ^5850.00 as incentive remuneration). Collection ofa 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, notifiedfor a matriculate clerk Evidently,fall back wages and incentive remuneration are notpart of wage structure in technical sense, but nomenclature of fall back wages and incentive remuneration, given to wage packet ofa 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 wouldproceedahead to devise a wage structure in the form offall back wages and incentive remunerationfor the deposit collectors, which should not be less than the minimum 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 notpedantically. Atbase wasthe demarid for a revision ofthe fall back wages. While raising the demand,thejustification 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 with 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 thejustification 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 Page34 of43 2015:DHC:11316-DB t,[3] \ Tribunal being without any power left in it to look at some other factor justifyingthe demand. Thetwo decisions relied upon bylearned counselfor 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 oflaw 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 ofthe award the Tribunal recognized the principles to be kept in mind from the perspective ofthe employer while fixing a fair wage and to said extent the principle of law laid down by the Supreme Court in A.K.Bindars case (supra) has been kept in mind by the Tribunal, a fact conceded to by learned counselforthe appellant. The argumentwasthatthe 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 ofthe 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 ofour opinion we have already noted that it was agreed by learned counsel for the parties that cost benefit analysis ofthe 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-1/9 of the two banks. LPA No.429/2015 & conn.matters Page 35 of43

37. In his affidavit by way ofevidence,Sh.K.Ganesh has simply deposed: 'The deponent annexes herewith the copies ofthe cost benefit analysis studies conducted by the various banks which wouldshow that the deposit schemes are not remunerativefor 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 Banlc,the costanalysis benefitisEx.MW-1/1. Itistabulated asunder:- Cost-Benefitanalysis ofthe TinyDepositScheme (As on 3March.2011) Particulars (Amountin Lakhs) a Aggregate deposits under thescheme 3913.00 b No. of Depositaccounts 33,400 c Commissionpaid to depositcollectors 118.03 d Interestpaid on deposits under the scheme

26.48 COSTBENEFITSTUDY Particulars Total per year (Tin lakhs) Per T1007- of Avg.Deposit f BENEFITS a Incomefrom CRR b Incomefrom SLR 73.76. 1.88 c Yield on Advances 286.47 7.32. TotalBenefits 360.23 n 9.20 COSTS a Interestpaid 26.48 0.67 b Commission paid to Deposit Collectors

118.03 3.01 LPA No.429/2015 & conn.matters Page 36 of43 2015:DHC:11316-DB c StaffCost 321.71 8.22 d Other operating cost 70.64 ' 1.80 Total Costs 536.86 13.71 NETBENEFIT (-) 176.63 (-)4.51 The cost analysis benefit Ex.MW-1/9 concemiiig United Commercial Banlc reads as under;- CostBenefitAnalysis ofLaghu Bachat Yojna (basedonfiguresfor theyear2004-05) Ifthe deposit Collectorsfederation demandsare accepted BASICDATA Particulars (Amountin f Lacs) a. Average deposits under the scheme 21502.00 b. Commissionpaid to deposit collectors 886.47 c. Interestpaid on deposits under the scheme 1039.50

COSTBENEFITSTUDY PARTICULARS Totalper year Per Tl007- Benefits f of Avg.Deposit f a. Incomefrom CRR 15.05 '■ 0.07 b. ' Incomefrom SLR 448.32 2.09 c. Yield on Advance 1194.99 5.56 d. Yield on investment of Surplus Deposits - - TotalBenefits 1658.36 7.72 Costs a. Interestpaid 1039.50 4.83 b. Commission paid to 886.47 4.13 LPA No.429/2015 & conn.matters 2015:DHC:11316-DB depositcollectors c. Conveyance paid to Deposit Collectors

56.45 0.26 d. Gratuity paid payable to deposit Collectors

36.93 0.17 CostofLBYDeposit 2019.35 9.39 e. Operating Cost i.e. staff cost and other cost3%

645.06 3.00 Total Cost 2665.41 12.39

38. When cross-examined, Sh.K.Ganesh, who had exhibited his affidavit by way ofevidence as MW-l/A,deposed:- "Ex.MW-l/A is based on my personal knowledge as well as information gatheredfrom other sources. Contents ofpara VIII, IX and X of my affidavit are based on information gatheredfrom the documents in possession ofIndian Banks Association. Those documents are notplaced 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 afalse statement in contents ofthe above referredparagraphs. It is incorrect that Ex.MW-1/1 to Ex.MW-1/9 areprepared only with a view tofile the same before this Tribunal. As per information collected 10274 deposit collectors were working in the year 2007 with various Banks. Ihave no information as to how much amount was being collected by them. From the contents ofEx.MW-1/1 to Ex.MW-1/9 Isway 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 Ex.MW-i/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 LPANo.429/2015 & conn.matters Page 38 of43 Section 114 ofthe Indian Evidence Act, 1872. That apart,let us highlight MW-1/1,the cost benefit analysis concerning Indian Bank,which we have noted in paragraph37above. Asperthesame,as ofMarch 31,2011 atotal sum of ^9.13 crores was lying in deposit with Indian Bank under its Tiny DepositScheme. The outgoing reflected is commission paidtothe Deposit Collectors in sum of fl.l803 crores and interestto be paid to the depositors under the scheme in sum of ?0.2648 crores. As perdhe statement,interest which the bank would earn from the SLRto be maintained and advances to the customers ofthe 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 ?D.7064 crores. The net loss shown is ^1.7663 crores. We had repeatedly putitto the learned counselforthe appellant as to on whatbasis the bank had allocated ^.2171 crores as the staff cost relatable to the scheme and ?0.7064 crores as the operating 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 ?3.2171 crores as staff cost to the bank for the scheme is highly exaggerated,notonly for said reasori of it being ex-facie exaggerated,for the primary reason:that the banks did not « n !.. produce the primary documents nor gavejustificationfor said apportionment vis-a-vis the total staffcost and the quantum ofworks performed by the 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 iffor back wages are increased is correct. There is no perversity in the appreciation ofevidence nor is there any oversight ofany relevant evidence. LPA No.429/2015 & conn.matters Page 39 of43

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. Whilstit 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, biit has overlooked the fact that the repackaged remuneration was linked to higher targets to be achieved with right conferred upon the banks to terminate the contract of service iftargets were not achieved in two successive quarters. Now,the banks cannotterminate the contract ofservice from a retrospective date and make recoveries. Further, the award is silent on the aspect of: What would be the consequence ifthe 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 ofthe 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 would have to work for about[3] hours a day. The Tribunal has taken note of the Bipartite Settlement under which part time workers ofthe 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 who LPA No.429/2015 &conn.matters Page 40 of43 2015:DHC:11316-DB does not meetthe target would presumably not be working for three hours a day. The linkage to the fall back wage 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 ifthey don't meet the target. And we emphasize that as perthe Tribunalthe banks would be entitled to 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 would be under a threat ofrecoveries. 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[4],00,000/- and ^,00,000/- in category 'C,'B'and'A'areas respectively. Thus,on the facts ofthe instant case the rule ofthe game could not be ehanged 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 made to one M.A.Shemeer, an account holder with Federal Bank Ltd. The data provided would evince that said Sh.M.A.Shemeer opened account No.10030600087410 witl^the Federal Banlc on November 08, 2013 and through a daily Deposit Collector LPA No.429/2015 & conn.matters Page 41 of43 2015:DHC:11316-DB i 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 ^4,000/- 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 ^6,000/- 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 29,2014 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 statementfiled.

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 ofmoney came to the notice of the bank they immediately took corrective action by issuing circulars fixing minimum duration ofan 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 LPA No.429/2015 & conn.matters Page 42 of43 2015:DHC:11316-DB r b Adjudicatortothecouttselwhertargumentswerebeingadvancedbeforethe IndustrialTribunal,anticipatedtheawardandinthecaseofSyndicateBan issued acircularto said effecton June01,2013. (The award m queshonis datedOctober07,2013). Wefindthatpost,awardAndhraBankhadissued a circular on November 27,2013 fixing minimum duration ofthe deposit underitsBhagyaLaxmiDepositScheme. Otherbankshavefollowed,and we need not note the dates on which the banks have issued circulars concerningminimumperiodofthedeposittobemaintained.

44. Weonlyhaveto highlightthatthe possible mischieffromtheaward wouldnotrendertheawardliabletobesetaside. The mischiefisofakind whichcouldbeprevented,andasamatteroffacthasbeenprevented.

45. The appeals are accordingly disposed of modifying the impugned award dated October07,2013,inthat,the award is madeprospective m its • operation. Restofthe award as modified by the learned Single Judge is upheld.

46. Parties shallbeartheir owncosts allthroughout., (PRADEEPNAISBR^JOG) JUDGE (MUKTA OTPTA)