ANDHRA BANK v. ALL INDIA BANK DEPOSIT COLLECTORS FEDERATION

11. To strengthen his arguments on the issue raised, learned counsel relied upon the judgment of the Supreme Court in the case of JJL Iron and Steel CoXt±, Kcmpur vs. The Iron and Steel Mazdoor Union, Kanpur AIR 1956 SC 231 in which the Apex hb

22. All the same, wide as their powers are, these Tribunals are not absolute andthere are limitations to the ambit oftheir authority. In Bharat Bank, Ltd vs. Employees ofBharat Bank Ltd. 'AIR 1950 SC 188 at p. 20j (C), this Court held by a majority that though these Tribunals are not Courts in the strict sense of the term: they have to discharge quasijudicial functions and as such are subject to the overriding jurisdiction of this Court under Art 136 ofthe Constitution. Their poyvers derivedfrom, the statute that creates them and they have to function within the limits imposed there and to. act according to its provisions " I

12. Further relied upon the case ofM/S. Parry and Co., Ltd. vs, P.C: Pa! Oihers. AIR 1970SC1334 in which the Apex Court held as under:the Tribunal had to confine itself to the pleadings and the issues arising therefrom and it was, therefore, not open to it to fly off at the tangent disregarding the pleadings • and reach any conclusions that it thought as just and proper."

13. Learned counsel also relied upon the case of Workmen of M/s. Hmdustan Lever Ltd. and others vs. Management ofM/s Lever Ltd. AIM 1984 SC 516 in which tlie Apex Court held as under:- _ Tribunal may as wellframe preliminary issues ifthe point on which the parties the reference are precluded or prohibited from raising; to wit if the employer does not question the status of the worlanen, the Tribunal cannotsuo moto raise the issue and proceed to adjudicate upon the ^ sam.e and throw out the reference on the sole ground that the concerned worlcnaan was not a workman within the meaning of the.expression of the Act

14. Mr. Arora further submitted that the Tribunal was to see the scope of the reference from the circumstances preceding the reference. Since no claim was raised in the pleadings before the Tribunal, no 'industrial dispute' exists in relation to gratuity, thus the Tribunal has disregarded the well settled law. -15. Learned counsel fiirther submitted that the Tribunal has proceeded on the basis as if the mini Deposit Collectors were employees and, therefore, they are entitled to better remuneration than fixed earlier. Whereas, the Apex Court in case of Indian Banks' Association (supra) clearly held that thfey camiot be treated to be regular employees but they are only 'worlanen' under the Act.

16. Mr. Arora submitted that the Tribunal misdirected itself by not considermg the cost analysis in running the schemes as per the chart extracted at page 13 and 14 of the WP(C) 7571/2014. He contended that the financial aspect was completely lost sight ofby the Tribunal. As per the evidence of worlcman, namely, Mr. IP. about the cost benefit analysis. Whereas the Banlc Management had. pioduced documents in evidence showing losses. In number of cases the Supreme Court has obsei-ved that financial capability is one of the main criteria before any monetary benefit could be ^ granted to the woiiaiian.

17. To strengthen his arguments on the above issue, learned counsel relied upon the case of/iJL Bindal aridAnother vs. Union ofIndia and Others 2003-11 LLJpage 1078 in which the Apex Court observed as under;-

16. The contention that economic viability of the industrial unit or the financial capacity of the - employer cannot be taken into consideration in the matter ofrevision ofpay scales ofthe employees, does not appeal to us. The question ofrevision ofwages of workmen was examined by a Constitution Bench in Express Newspapers Ltd and Ors. vs. Union ofIndia and Ors. AIR 1958 SC 578: 1961-I-LLJ-339, having regard to the provisions ofIndustrial Disputes Act and Minimum Wages Act and thefollowingprinciples forfixation ofrates ofwages were laid down atp367 ofLLJ: (1) that in thefixation ofrates ofwages which include Mnthin its compass thefixation ofscales ofwages also, the capacity of the industry to pay is one of the essential circumstance to be taken into consideration except in cases ofoare subsistence or minimum wage where, the employer is bound to "pay the same X_..: L 1 1i31M (2) that the capacity ofthe industry to pay is to be considered on an industry-cum-region basis after taking afair cross section ofthe industry; and (j) that^ the proper measurefor gauging the capacity of the industry to pay should take into account the elasticit)^ ofdemandfor the product, thepossibility of tightening up the organisation so that the industry could pay higher wages without difficulty and the possibility of increase in production considered in confunction with the elasticity of-demand for the product - no doubt against the ultimate back-ground. that the burden of the increased rate should not be such as to drive the employer out business

18. Mr. Arora forther submitted, that the Tribunal has also erred in granting the relieffrom aretrospective date without realising the financial implication of the award. In most of the cases, such as State Bank of Jaipur and Bikaner, the financial implication is more than 373 laldis, and similarly in other connected banks. The scales fixed by the Tribunal while comparing the Banking Sector with Industrial Sector or insurance industries itself shows that the 1nbunal has compared the commission paid to the Collectors,

19. Learned counsel submitted that all industries are different and wages or minimum wages are fixed'for employees in that particular industry. In the present case of Collectors they are not "regular employees" as held by the Supreme Court. They have no fixed working hours, no disciplinary control by the Banks, no hours of

20. Mr. Arora further submitted' that learned Tribunal also misdirected itself by adding parties to the reference and made the award applicable to them when in fact no demand has been raised against them. No conciliation had taken place and such unjustifiable and untenable demands have been granted. It is the setded law that for raising a valid 'industrial dispute', the conciliation proceedings to take place, Govt. to consider the report of Conciliation and then make a reference. However, by adding parties the Tribunal acted unjustifiably giving no chance to the employers concerned to place/plead their cases before the Authorities concerned. Thus, the principles of natural justice have been violated.

21. Mr. Arora fiirtlier submitted tliat in one of tire writ petition, I.e.. \VP(C)No.8236/2014 and otlier petitions the point liad Ijeen raised tliat no tenure lias been fixed by the Tribunal under the award for keeping the deposit. Therefore, it has so happened that some of the deposit once made is again withdrawn and recycled and thus, the same money is iLsed again and again by the Collectors.

22. It is peitinent to mention here that vide order dated 27.11.2014 this Court permitted the petitioners to file an additional affidavit to explain this phenomena. Accordingly, on peiTisal ofcharts it shows

23. Mr. Arora submitted that on pleadings of the parties, the learned Tribunal framed the follov/ing three issues:-

(i) As per terms ofreference sent by Government ofIndia,

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

24. The learned Iribunal gave its opinion on the issue.no.(ii) above in para 89 inits Award which is as under:-

^ deposit collectors represented by the Federation, /Union, work Mnth those banks, who have been added as parties to the dispute. On impleadment of those banks as parties to the dispute, the issue became redundant. Accordingly, it is concluded that the issue, referred above, needs no adjudication. It is answered accordingly.!' 2j. Learned counsel further submitted that the Payment of Gratuity Act, 1972 is not applicable on worlcmen, however, it applies only to the employees under the said Act. Therefore, the- Av^aid on the gratuity and other issues raised above is to be set

26. On the other hand, Mi". Inderjit Singh, learned counsel for respondent No.1/Federation submitted that the impugned award is just, fair and based on determined appraisal ofevidence. Therefore, this Court may not disturb tlie same v>/hile exercising its supervisory jurisdiction as the writ petitions are not bonafidely filed and their only objective is to tear out the poor v/orlcmen in endless litigation. As argued by the counsel for the petitioners, the learned Tribunal had added parties to the reference without jurisdiction and against the provisions of the Industrial Disputes Act, 1947. In the case of HochtkfGammon vs. Industrial Tribimal, Mhiibaneshwar, Orissa ccS Ors. Industrial Tribunal, Bhubaneshwar, Orissa and Ors. [1964J 7 SCR-596 the Apex Court has held that a party to the industrial dispute named in the order of reference does not completely or adequately represent the interest either on the side of the employer, or on the side of the employee, it may direct that othei peisons should be joined who would be necessary to represent such mterest. The test always must be, is the addition of the party necessary to make the adjudication itself effective and enforceable? Moreover, the order of impleading the other banlcs.in the proceedings before the Tribunal ought to have been challenged at that point of time. However, the petitioner waited for the result of the same. Hence, at this stage, the petitioners moved to this Court just to defeat the fruits of,the respondents workmen received from IlHiL

27. Learned counsel Hirther submitted that the learned Tribunal rejected the cost benefit analysis because the same was not certified by the Auditors of the petitioners' Banlcs and also because it was ex-lacie a tabricated document. Incidentally, the Cost Benefit analysis does not come within the ambit of Bankers Books as defined in Section 2(3) of the Banks' Books Evidence Act, 1891. The same reads as under:-. ' "bankers' books ""include ledgers, day-books, cashbooks, accouni-books and all other records used in the ordinary business of the bank, whether these records are kept in writtenform or stored in a micro film, magnetic' tape or in any'- 'other form of mechanical or electronic data retrieval mechanism either onsite^ or at any offsite location including a back-up or disaster recovery site ofboth; "

28. Moreover, the plea that die scheme was un-remunerative was rejected by the Supreme Court in the case of Bindal (supra) observing as under;- "27.. Shri Nageshwar Rao, learned senior counsel appearing in Transferred Case No. 35 of2000 (Writ Petition filed.by employees ofHFC in Calcutta High Court) apart from, challenging the validity of the Office Memorandum on the same grounds also urged that the price ofurea was fixed by the Government under Fertilizer Control Order which was wholly • unremunerative and, therefore, the employees 'cannot such aplea has not been laid in the pleadings. That apart, learned counselfor the respondents has made a statement that the Government had reimbursed the Units in that regard.

29. Learned counsel further submitted that the banks are admittedly making huge profits.as indicated in paragraphs 180 & 181 of tne impugned award. He further submitted that if the scheme ot the banlcs was going under loss, it was up to the banlcs to close or continue with that scheme. If, despite the scheme being running mloss, the banks are continuing with the said scheme, then the poor workmen should not suffer for the loss incurred by-the banks in particular scheme.

30. Learned counsel further submitted that the Tribunal refeiTed to minimum wages mPara 181 of the award to convey the simple fact that the Collectors could not be paid less than the prescribed minimum wages. Needless to mention that the Apex Court held long back in the cases ofBijoy Cotton Mills /1955J[1] LLJ129 and Alum,mm, Works [1958],/ LLJ I that an employer, who cannot pay even the prescribed minimum wages, has no right to exist. Moreover. Article 43 of the Constitution of India mandates that the State should endeavour to secure to all the workers aliving wage. Fixing of a minimum wage is just a first step. The remuneration paid to the Deposit Collectors was not revised since..i -..-.UIM I ! tried to pull up their remuneration near about the minimum wages level.

31. Learned counsel further submitted that the plea of the petitioners tliat Collectors are not the employees of the banks is Wholly wrong, motivated and false. As per the definition of workman in section 2(s) of the liuiustrial Disputes Act, 1947, the respondents' workmen are employees oftlie petitioners /banks. j[2]. On the issue of gratuity raised by the petitioners, learned counsel for the respondent no.1submitted that the learned Tribunal, while dealing with the issue offair remuneration ofthe Collectors, merely observed in Para 184 that •'....His paypacket would come to Rs. J1000.00 in amonth, besides agratuity ofRs.4000.00 ayear. " Therefore, gratuity was just mentioned to show the overall total income ofDeposit Collectors. It is hardly necessary to mention that gratuity is only aterminal benefit and is to be paid at the time of exit of the employees. Therefore, mention of the word 'gratuity' was only by way of an illustration. In any case, this Court may modify that gi-atuity shall be paid to the Collectors as per the Pa3/ment ofGratuity Act, 1972, 3J. Learned counsel further submitted that another gi'ievance raised by the petitioners is about the retrospective effect given by the Tribunal in the award. It will be seen from para 192 of the - ---J ^; j— the Tribunal. It is well settled law that grant of relief is in the discretion ofthe Tribunal and the same can be granted either from the date of raising the dispute or from the date of reference or from the date of award. Therefore, having regard to all the facts ofthe case, d-ie learned Tribunal has given relief to the Collectors from 19.07.2005. It is pertinent to mention that Collectors even now will be in receipt of remuneration just about equal to the sub ordinate staff employed.in the banks although they admittedly do clerical and cash handling work.

34. To strengthen his arguments, learned counsel has relied upon tiie case ofSarva Shramik Sangh, Bombay vs, Indian Hume 'Pipe Co. Ltd. and AnrJ993 Lab IC 870, wherein the Apex Court held that the Tribunal can grant relief even with effect from the date anterior to the date ofraising an. industrial dispute. 3j. On the issue that the learned Tribunal has travelled beyond the terms of reference, learned counsel for the respondent no.l has placed reliance on aDivision Bench judgment ofthe Bombay High Court in the case of^Sheshrao Bhaduji Hatwar vs. 'PM., First Lubour Court &others 1992-1 LLJ 672 Bom. that even if the reference is not happily worded, it-will not justify' short-circuiting the reference by ignoring the basic background and subjecting the poor worlanan to untold misery and hardship. 5^ ol the respondent workmen. This Court under Article 226 of the Constitution of hidia should not normally disturb the award passed by the Tribunal on technical grounds. The petitioners have failed to establish that there is any perversity or illegality on the face of the awaid. Ihe learned Tribunal on all the issues has given sufficient reasons based on evidence on record and the legal position available. Therefore, the writ petitions are liable to the dismissed.

37. Ms. Rashmi B. Singh, learned counsel for respondent No.2, ni addition to the submission made by the counsel for the respondent no.l, submitted that during hearing of these petitions, this Court allowed the petitioners to file some additional evidence to satisfy the conscious of the Court. The said documents have no legal sanctity as they are not proved by any of the witnesses. Moreover, the plea of the counsel for the petitioners that some of the Collectors deposited the same amount in the account of the depositors on anumber oftimes in ayear. They used to open the account, deposit the amount and thereafter close the account. This type of practice, ifcontinued because ofthe fault ofthe petitioners the respondent worhnen camrot be blamed for that. The petitioners are free to make guidelines relating to the life of the deposits and only thereafter they can give commission to the Collectors. If it is presumed that has happened in afew cases, the interest of the 5^

38. O'li the other issues, learned counsel has supported the Eirgiiments of learned counsel for the respondent no.l andsubmitted that the petitioners have only raised technical issues without any basis and evidence which has to be rejected and the petitions deserve to be dismissed;.

39. I have heard learned counsel for die parties.

40. The respondent no.l Federation pleaded before the Tribunal that bank managements resorted to reducing rates of commission iTom 3.5% to 2% for collection over and above Rs.7500/- per month. Banlc managements also took steps to recover excess amount paid from 1997. Above steps were illegal and unwarranted. Banks have been paying 3.5% commission from 1978 to 2002 and subsequently reduced itto 2%. In fact, the Association mistook the incentive remuneration as commission. The Federation flirther projected that incentive remuneration is part of the fall back v/ages for doing clerical work in the banks and the comrnissipn is for manual work done by the Collectors in collecting the amount. The Industrial Tribunal, Hyderabad, Andhra Pradesh High Court and the Apex Court did not strike down the contract between the Deposit Collectors and the banks, hence banks were paying 3.5%) commission tor the manual work. Accordingly, linkage offall back wages of Rs.750/- determined by Industrial Tribunal, Flyderabad,

1. J last 15 years. The fall back wages are required to be adjusted upwards, related to the present consumer price index. Fall back wages of Rs.750.00 was-linked to minimum deposit ofRs.7500/per month. This linkage was based on consumer price index at 500 points. At present, consumer price index stands at 2438 points. Moreover, Tenth Five year plan has projected annual growth rate of 8% in GDP as its target.

41. The State Governments have fixed minimum wages on upward side consistently. In order to show justification of linkage of fall back wages ofthe Collectors, with All India Consumer Price hidex, the Federation details the amount of minimum wages, fixed by the Government of NCT Delhi from time to time. In the year 1988 minimum wages for unskilled was Rs.562/- and for matriculate Rs.750/-. Wliereas in the year 2003, the minimum wages for the aforesaid two categories were Rs. 2783.90 and 323 1.90 respectively.

42. It IS pertinent to mention here that the claim filed by the Federation before Industrial Tribunal, Hyderabad was that minimum wages in the region of Rs.800/- at 500 points in the All India Consumer Price Index for industrial workers on the basts of comparison of different wage stractures in public sector undertaking may be awarded in their favour. The respondent no.l 5? apart, benefits ofweekly holidays, national festivals, annual leave with wages, sick leave, medical leave and retiral benefits.

43. Accordingly, the Industrial Tribunal, Hyderabad, answered the reference as follows; 'YO All the deposit collectors and agents who are below the age of45 years as on October 1980 (the date ofreference to the Tribunal) shall be considered for regular absorption in the post of clerks and cashiers ifthey are m.atriculates and above, including. qualified graduates and post graduates. Those who are absorbed shall be treated at par with regular clerical employees of the banks. Those M>ho are qualified with 8"' class and below matriculate shall be consideredfor absorption as sub staff by taking qucilifying examination. (ii)As regards deposit collectors and agents who are above 45 years of age as on 03.01.1980 and also those who are umvilling to be absorbed in regular bank service, they shall be paidfall back wages of Rs. 750.00 per month linked with minimum deposit of Rs.7500.00 per month and they should be paid - incentive remuneration at 2%for collection over and above Rs. 7500.00 per month and they should also be paid uniform conveyance allowance of Rs.50 per month for deposits of less than Rs.l0,000,.00 and Rs.lOO per month for deposits of more than Rs. 10,000.00 or upto or above Rs.30,000.00 per month. They should be paid gratuit)^ of15 days commission for each year ofservice rendered. ". ' •

44. The Award dated 22.12.1988, passed by Industrial Tribunal, of Andhra Pradesh whereby the writ of Syndicate_Bank was partly allowed as under: "On conspectus of consideration, the award reached • the conclusion that deposit collectors are worlonen of the respective banks though they are not and also cannot claim to be regular employees. In view ofthe conclusion, it necessarily follows that the scheme evolved by the Tribunal in Para 69 ofthe awardfor absorption ofthe deposit collectors who are below 45 years of age as on 03.10.1980 has to go. But the award also directed that the deposit collectors who are above 45 years and -those who are not willing to be absorbed as regular employees, be paidfall back wages oj Rs.7jQ.00 linked, with minimum deposit of Rs.7500.00 per month plus incentive remuneration at 2%. Besides such unabsorbed deposit collectors were also made entitled to conveyance alloyyance ofRs.50 per month for deposit of less than Rs.10,000.00 and Rs. 100 per monthfor deposits ofmore than Rs.10000 upto or above Rs.30,000.00 per month. Besides, they were also entitled to gratuity of15 days commission for eachyear ofservice rendered. Now that yve find that, all deposit collectors are only Mrorhnen and none can be absorbed as regular employees, all ofthem have to be treated as only one category. The award would hence uphold and apply the decision oj the Tribunal for payment' offall back wages and inventive' commission as well as conveyance allowance and gratuity to the deposit collectors as yvorkmen. The award has been modified accordingly. "

45. Being aggrieved, the Association cliallenged the judgement We have considered the rival submissions. In our view, Shri Sharma was right when he submitted that on the basis ofevidence before it, the Tribunal has given findings to the effect that the deposit collectors are workmen within the meariing of section 2(s) of the Industrial Disputes Act, 1947. On the evidence on record, it cannot be said that that the finding was unsustainable. Haying been shown relevant evidence, we are also of the opinion that the Tribunal correctly arrived at a conclusion that these deposit collectors were yvorlmen. "

46. On the issue of grant of pay scales, allowances & other service conditions and on continuance of the schemes the Apex Court concluded as under "In the present case, not only are mode ofselection and qualification not comparable but even the work is not comparable. Work yvhich the deposit collectors perform is completely differentfrom the work which regular employees do. There was no question of the deposit collectors being paid the same pay scales, allowances and other sennces conditions as regular employees ofthe bank The award also showed, no substance in the contention thai these schemes are un-remunerative. Banks have introduced these schemes because •they M?ant to encourage common man to make small and regular deposits. As a resuh of such schemes, number of depositors have become much large. We have no doubt that such schem.es are continuing because the banks find them remunerative. Banks have large i ' " ! J

47. It is pertinent to note that the Apex Court 'held that Collectors are woriaiien within the meaning of section 2(s) of the Industrial Disputes Act, 1947. They are required to be compensated properly and adequately by the banks. The fact that other employees v/orking in the banks are being paid good fair wages and capacity to pay of the banks is well Imown. Asum of Rs.750/- fixed by Industrial Tiibunal, Hyderabad, is far below even the subsistence level in the year 2003. Therefore, fall back wages cannot be below minimum wages, fixed by the State Governments from time to time. Concept of fall back wages would mean that minimum wages must be paid regardless of all other facts.

48. It is further pertinent to note that respondent no.l moved an application under section 18(3) ofthe Act on 31.01.2005 before the Tribunal whereby pleaded 48 banlcs, as named in para 23 of the award, and most of the banlcs are party before this Court. None of the bank had challenged their impleadment, however, defended their cases before the Tribunal.

49. On pleadings oi: parties, the learned Tribunal framed the following issues "(i) As per terms ofreference sent by Government of' India. (in) Relief." jO. As regards the issue no.(ii) as noted above, undisputedly the appropriate Government referred tlie dispute for adjudication to tlie Tribunal. In its written statement, tlie Association took an objection tliat It is neitlier employer of the Collectors nor it lays dowti terms and conditions oftheir engagement.. Collectors ar-e persons engaged by the respective banks on the basis oftheir individual contracts to work on commission basis. Such individual contracts are between the banks and the deposit collectors and as such, on any matter or matters which is/are part of the contracts, they cannot raise any grievance against tlie Association. Accordingly, the learned Tribunal allowed the application under section 18(3) and impleaded 48 bc^ks as mentioned above.

51. No doubt, it is not open to the Tribunal to travel materially beyond the terms of reference, Avhich detemiine the scope of its powers and jurisdiction fi-om case to case. However, provisions of section 10(I)(d) of the Act empowers the appropriate Government to refer the dispute or any matter appearing to be connected with, or relevant to the dispute, whether it relates to any matter specified mthe Second Schedule or the Third Schedule, to aTribunal for adjudication. Section 10(4) ofthe Act provides, that jurisdiction of an Industrial Tribunal would be confined to points of dispute referred to an Industrial Tribunal for adjudication, it. may while dealing with the said points, deal with the matters incidental thereto, if die Tribunal leels that some persons'who are not joined to the relerence should be brought before it. Accordingly, the Tribunal has power to make an order in that behalfunder section 18(3)(b) of the Act. In the case in hand, the petitioners banks, where Collectors are workmg, initially were not made parties to the dispute. Addition ofthe banks was necessary to make adjudication effective and enforceable.

52. Admittedly, the banks impleaded in tlie an-ay of parties are tine employers of the collectors. Thus, the Tribunal has not materially enlarged the scope ofreference by summoning the banlcs to participate in the proceedings.

53. It is not in dispute that 40 banlcs filed their respective written statements and contested claims put forward by the Federation as well as the Union. Admittedly, the collectors represented by the Federation /Union, work with those banks, who have been added as parties to the dispute. Since, initially, the reference was qua only the Indian Banks Association and. thereafter, joining of 40 banks witli their respective statemems to issue no.l, the issue no.2 has become redundant as rightly held by the Tribunal.

54. The learned Tribunal has justified by giving example ofother • i K jr:;^.i were getting Rs.2130/- to Rs.2850/- per month, besides other fringe beneiits liice annual increments, variable dearness allowance, house rent allowance, compensatory allowance, washing allowance, children education allowance, transport subsidy and uniforms etc. However, no such benefits are available to the Deposit Collectors.

55. Moreover, Seventh Bipartite Settlement, entered into by the banking industry M/hich fixed minimum basic pay of sub stEtff at Rs.2750/- per month, besides dearness allov/ance, house rent allowance and city compensatory allowance. Minimum basic- pay for clerical staff has been fixed at Rs.3020/- per month besides above benefits. Fall back wages for collectors was fixed at Rs.750 per month, when an employee of clerical grade in the bank was getting basic pay of Rs.520/- besides above benefits. His total salary used to come around Rs.750/- per month. Minimum wages ol workmen in various industries have gone upwards, as compared to the year 1983. There is amanifest justification for enhancement' m fall back wages of at least Rs.5000/- for collection of Rs.50,000/- per month to compensate the Deposit Collectors for increase in cost of livino;.

56. It is not in dispute that minimum wages are required to be paid to any- industrial labour. In other words, minimum wages is lowest wage below which efficiency of workmen'is likely-to be cleclaied that wage policy to be followed irrespective of the extent oi pioiits, the financial condition of the establishment or the availability of worlcmen on lower wages. Thus, minimum wage applies to all alike big or small. Afair wage is thus related to the earning capacity and work load. It must be sufficient to provide not only essentials, but fair measure offmgal comfort, with an ability to provide for old age and evil days. j[7]. No doubt, for fixa.tion of^ wage structure, industrial adjudicator had to take in account the counter balancing circumstances. In the present case, all the banks are admittedly earning profit from the business. This fact has been admitted by all the witnesses examined by the petitioners as well as the respondents, as have been discussed in detail by the learned Tribuna.1. It is not a matter of dispute that the collectors are workmen within the meaning ofsection 2(s) ofthe Act, who are not awarded scales of wages applicable to the employees of the banlcs. They are aspecial class in themselves. Neither they are classified as part time employees- nor permanent employees. However, for the puipose of assessment of their fall back wages and incentive remunerations, it would be taken note of as to what quantum of wages apart time employee gets from the banks. The 9"^ Bipartite Settlement, signed on wage revision, pension and other service -••ij-rn time employee. Clause 21 of the said settlement provides as follows: In substitution ofClause 21 ofthe Bipartite Settlement dated 2"' June 2005, with effectfrom r' November 2007, Part-Time employees who are members of the subordinate staff on consolidated wages and whdse normal working hours per week are "upto 3 hours' and ''more than 3hours but less than 6hours" shall be paid one third scale wages w.e.f f May 2010. From'T' November 2007 to 30"' April 2010, they shall be paid consolidated wages as under: a. Upto 3 hours: -at bank's discretion with a minimum, ofRs. 10307- p.m. b. More than 3 hours but less than 6hours: at bank's discretion with minimwn ofRs.11407-p.m. The employees recruited on or after f May 2010 in part-time,scale wages shall be at minimum ofone third scale wages. " ~

58. It cannot be in dispute that the Collectors perform clerical duties, since they collect deposits from the account holders, issue leceipts to them and account for the money so collected to the banks. Though Deposit Collectors are not part time employees but assuming them to be so, they would get 1/3'"^' of scale wages ofthe clerical staft, besides an amount equivalent to the other benefits paid to such employees. Their basic fall back wages would be. Rs.2400/- per month, besides other allowances admissible as per Collectors get fall back wages of Bls.750/- on a collection of Rs.7,500/-per month. On collection over and above Rs.7,500/- per month, they get incentive remuneration of 2% assuming that Rs.3,00,000/- per month is collected by aDeposit Collector, his fall back wages and incentive remuneration would be Rs.6,600/- [(Rs.750/- that fall back wages) + Rs.5,850/-' (incentive remuneration)]. Thus, it is obvious that a Collector is getting'less than the minimum wages, notified from time to time and even less than adeemed part time clerical staff On perusal ofaward Ex.WW- 1/C, the.main thrust of the Tribunal was whether the Collectors were commission agents or employee of the banlcs. Accordingly, the Learned Tribunal at Hyderabad held that the respondent/workman should be paid a fall back wages of Rs.750/per month, linked with minimum collection of Rs.7,500/- per month. They should also be paid incentive remuneration at 2% for collection over and above Rs.7,500/- per month and also be paid uniform affirming allowance ofRs.50/- per month for depositing of less than 10,000/- and R.s.100/- per month for deposits ofmore than Rs.10,000/- or up to or above Rs.30,000/- per month.

59. In respect of die other demands, fixation of fall back wages and incentive remuneration, the Learned Tribunal of Hyderabad ruled out that the Deposit Collectors or agents, are not entitled to JJ-„ LLEIM (,r festival holidays. They were also entitled to enjoy leave account to their ov/n choice after intimating the bank as regards the retirement benefits. As held by the Learned Tribunal, they cannot claim any provident fund or pension but they should be paid gratuity of 15 days commission for each year ofservice rendered. They are not entitled to medical and hospitalisation charges and the insurance as regular employees. They would be entitled to such benefits only after they are regularly absorbed in the banlc services.

60. Except the above treatment of alteration relief of the federation, the Learned Tribunal at Hyderabad nowhere linked reiiet of fall back wages and incentive remuneration to All India Consumer Price Index. When Lligh Court of Andhra Pradesh exercised power of judicial review, none of the parties raised the issue to the effect that the fall back wages and mcentive remuneration were linked to All India Consumer Price Index. Therefore, there was no occasion for High Court of Hyderabad to consider as to whether fall back wages and incentive remuneration were linlced with All India Consumer Price Index or not. The Apex Court too was not invited to deal the issue that the fall back wages and incentive remuneration, awarded in favour of the Deposit Collectors, were linked to All India Consumer Price Index. In reference order, appropriate Government tried to project that the fall and incentive remuneration awarded to the Deposit Collectors have no linlc with All India Consumer Price Index.

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

62. It IS well established that an employer has aright to organize or re-organize his business in any fashion, for the pmpose of convenience of better administration for achieving economy, productivity or profitability, subject to the limitation diat in doing so, he does not contravene any Regulation or other laws.

63. It IS pertinent to record that if these schemes are not reproductive, what prevented the banks to close down such schemes. Admittedly, the Pigmy Deposit Scheme was started by Syndicate Bank in the year 1967 in southern part of the country. The scheme attracted other banks too, where it was initiated when those banlcs were having small number ofits branches in semi urban and rural areas of the country. With the extension of banking industry, branches ofthe banks increased manifold with opening of Jil some ofthe banks, the scheme has been closed but such a decision was taken on other consideration, besides economic factors.

64. The Apex Court has affinmed the decision ofthe State Bank. of India in respect of closure of its scheme, vide its order dated 28.02.2008 passed in transfer case (Civil) No. 79/2005 titled as A.P. Bank Deposit Collectors Association vs. State Banlc ofIndia. Thus, it is clear that the'banks are free to close its scheme if it is not economically profitable. But in case, banlcs opt to continue with the scheme, they cannot.be allowed to' pay fall back wages and incentive remuneration which are less than minimum charges notified from time to time. An industry has to pay minimum wages• to its worlanen. As held' by the Apex Court, the collectors are workmen, a class m themselves,, who had a right to receive. minimum charges in the form of fall back wages and incentive remuneration.

65. It is settled law that for fixation of rates of wages, an Industrial Tribunal has to see the financial capacity ofthe industry as awhole to pay. Moreover, fmancial ca,pacity ofan employer and tiiiancial capacity of a particular unit is to be talcen into consideration.

66. Undisputedly operating profits of the batjcing industiy have increased by Rs.70,790/- crores while net profits have gone up by y? wages and incentive remuneration. Financial capacity- of a particular banlc has also been substantiated through the depositions of the witness produced by the petitioners and respondents, who deposed that the banks are earning profit from the last many years. Therefore, it is established that not only the banking industry as a whole, but individual banks, where small deposits scheme is'being run, have financial capacity to pay higher fall back wages and incentive remuneration to the Deposit Collectors, engaged by them. Accordingly for 'A' area city, like Delhi, fall back wages for Deposit Collectors should not be less than Rs.9,386/-.

67. For ascertaining the limit of collection, it is to be noted as to what amount ot money is being collected by the Deposit Collector in amonth. Sh. Pommuswamy witness of the worlanan stated that in the year 1978, he used to collect asum of Rs.3,00,000/- per month. As on date, (he entered in the Avithess box in the May 2011) was collecting asum of Rs.12,00,000/- approximately in amonth. Similarly, Ashish Bilala declared that he has been earning asum of Rs.12,000/- to 13,000/- per month as fall back wages and incentive remuneration. He deposed that he has been collecting a sum of Rs.6,50,000/- from account holders. Accordingly, Sh. Ashok Kumar has-been collecting asum of Rs.1,50,000/- to.Rs.2,00,000/- per month trom the account holders. It is pertinent to note that Sh. LP. Ponnusamy has been operating in 'A' are^ city while other Collectors operating in 'C, 'B' and 'A' area cities would collect Rs.3,00,000/-, Rs.4,00,000/- and Rs.5,00,000/- per month respectively. On collections over and above Rs.3,00,000/-, but upto Rs.5,00,000/-, a Collector would get an incentive remuneration of 3% and on collections over and above Rs.5,00,000/- per month, he will get incentive remuneration of 2% only. Therefore, aDeposit Collector of B area city who had to collect a minimum of Rs.4,00,000/- per month, will get fall back wages of Rs.8,000/besides incentive remuneration of Rs.300/- per month. Thus, by collecting more than Rs.5,00,000/-' in a month,; the Deposit Collectors may earn more. The amount, which will come to them towards fall back wages and incentive remuneration, would be over and above, the minimum charges, so notified by making that payment to the Deposit Collectors, the banks would not be constrained financially at all. The fall back wages and incentive remuneration, as referred above, have rightly been compared to the wages earned or adeemed part time of clerical staff, employed in the bank and the minimum wages for a skilled clerical staff in a scheduled employment.

68. I note that tlie Learned Tribunal recorded in the impugnedaward that conveyance allowance is being paid to the Collectors @ Rs.50/- per month for deposit of less than Rs.10,000/- and @Rs.lOO/- per month for deposit of Rs.10,000/^ over and above beiore the Industrial Tribunal of Hyderabad in the year 1981..The Industrial Tribunal granted the relief in toto and fixed conveyance allowance for the Collectors at the above rates. Since 1981 till date, price ofpetrol has roled many times. The Deposit Collectors had to leach persons of lower and middle income group, small traders, businessman, artists and self employed persons and house wives to collect money from them. These facts have established that a Deposit Collector has to reach his customer, according to convenience ofthe latter. For that puipose, possibility of going for collection twice or thnce a day, cannot, be ruled out. One cannot dispute that m'C area as well as 'B' area cities, the collectors may have to travel in aradius of 10 kilometres daily. In 'A' area city, he may travel a little bit longer. One cannot be oblivious of the fact that these days such bikes are in the market which are fliel efficient. Manufacturers claim that such bikes have fuel efficientlyofrunning generally 60 kilometres per litre. ADeposit Collector in 'C and 'B' area cities may have to travel roughly 500 kilometres in amonth. For ^A' area city, aDeposit Collector may avail public transport also. Accordingly, the Learned Tribunal opined that at least 8to 10 litres of petrol in a month is to be spent by a collector. Accordingly, asum ofRs.9,000/- per year has been granted towards conveyance allowance.

69. As per award Ex.WW-1/3 the fixation offall back wages and by award dated 22.12.1988, remained static till date. The present dispute was raised by respondent No. 1in the year 2003. After raising of the dispute and during the course of the adjudication, a few of banks closed their small deposit schemes. Accordingly, the Learned,Tribunal held that in case this award is not given to any retrospective effect than the Collectors ofbanlcs, who had closed the scliemes, would not be eligible to get any rehefoutofit. Therefore, the Learned Tribunal has held that the demand of federation/union lor enhancement of fall back wages and incentive remuneration, besides conveyance allowance is justified. Accordingly, the Learned Tribunal has given the Award retrospective effect from 19 July, 2005, the date when the banks were summoned to appear before the Tribunal.

70. Admittedly, issue of gratuity was irot part of reference. HoM^ever. learned Tribunal has held that the respondents will also get gratuity ofRs.4.000/- eve.y year. It is also not in dispute that in case of Bank,- Association, (supra). Hon'ble Supreme Court, held that Deposit Collector can be treated as regutaemployees of the Bank, though they may be 'workmen' under the Industrial Disputes Act. Moreover, there was no pleadings on this issue.

71. Keeping in view the above discussions, Ifind no discrepancy the respondents to claim gratuity, if they are entitled, under the Payment ofGratuity Act, 1972 before the appropriate forum.

72. The petitions are partially allowed with no order as to costs.

73. All the pending CMs stand disposed ofbeing infructuous. April 20, 2015 RS/Rita ly HICAIT -L iiE