South Malabar Gramin Bank v. South Malabar Gramin Bank Deposit Collectors Union and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **THURSDAY, THE 27TH DAY OF NOVEMBER 2014/6TH AGRAHAYANA, 1936** ## **WP(C).No. 24325 of 2011 (M)** **----------------------------------------** ## **PETITIONER(S):** **----------------------** **SOUTH MALABAR GRAMIN BANK, (A SCHEDULED REGIONAL RURAL BANK SPONSORED BY CANARA BANK), HEAD OFFICE, MALAPPURAM - 676 505, REPRESENTED BY ITS GENERAL MANAGER, MR. KISHORE KUMAR.** ## **BY ADV. SRI.T.R.RAVI** **RESPONDENT(S):** **-------------------------** **1. SOUTH MALABAR GRAMIN BANK DEPOSIT COLLECTORS UNION, REPRESENTED BY ITS GENERAL SECRETARY, C/O. SOUTH MALABAR GRAMIN BANK, KIZHISSERY, BRANCH, P.O. KUZHIMANNA, MALAPPURAM DISTRICT - 673 641.** **2. THE LABOUR COURT, KOZHIKODE - 673 001.** **3. THE CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL-CUM-LABOUR COURT, ERNAKULAM - 682 031.** **R1 BY ADV. SRI.P.RAMAKRISHNAN R2 & R3 BY ADV. GOVERNMENT PLEADER SRI.V.K.RAFEEQ** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** ## **WP(C).No. 24325 of 2011 (M)** **----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** **--------------------------------------** **EXHIBIT-P1-TRUE COPY OF THE CIRCULAR NO.19/78 DATED 13/02/1978. EXHIBIT-P2-TRUE COPY OF THE CIRCULAR 48/78 DATED 03/05/1978. EXHIBIT-P3-TRUE COPY OF THE JUDGMENT IN W.A. NO. 2537/2005. EXHIBIT-P4-TRUE COPY OF THE REVISED AWARD DATED 13/03/2006. EXHIBIT-P5-TRUE COPY OF THE JUDGMENT IN W.P(C) 18025/2006. EXHIBIT-P6-TRUE COPY OF THE LETTER DATED 07/07/2011. EXHIBIT-P7-TRUE COPY OF THE AWARD.** ## **RESPONDENT(S)' EXHIBITS:** **-----------------------------------------** ## **NIL** **//TRUE COPY//** **P.S.TO JUDGE.** Ms **v/** K.Vinod Chandran, J. **-------------------------------------** W.P.(C).No.24325 of 2011-M **-----------------------------------------** Dated this the 27[th] day of November, 2014 ## **JUDGMENT** The issue raised herein is, as to the commission payable to 'Nithya Nidhi' Deposit Agents [for brevity “NND Agents”] employed by the petitioner-Bank. The issue referred for adjudication was whether the unilateral reduction of commission could be sustained. That they are 'workmen' remains affirmed by Exhibit P5 judgment of this Court, following the judgment of the Hon'ble Supreme Court in _**Indian**_ _**Banks Association v. Workmen of Syndicate Bank and Others**_ **[(2001) 3 SCC 36].** 2 Admittedly, as on 1976, the NND Agents were entitled to commission at 3.5%. The same was reduced to 3% by Exhibit P1. There was further reduction in the same from 3% to 2.5%, by Exhibit P2. None challenged the said revisions, since, at that point of time, admittedly the employees were not organized into a Union. - 2 - WP(C).No.24325 of 2011 3. In the year 1984, the 1[st] respondent-Union was formed and a demand was raised in the year 1992. The issue was referred for adjudication. Though initially the same was declined, by virtue of Exhibit P3; the Labour Court considered the issue afresh and Exhibit P4 is the award of the Labour Court, in which the reduction of commission from 3% to 2.5%, with effect from 2.5.1978, to NND Agents was found to be unjustified. Here, it has to be noticed that only the reduction effected by Exhibit P2 dated 03.05.1978, was found to be unjustified by the Labour Court, in Exhibit P4. 4. Both the Management and the Union were before this Court with writ petitions, which concluded with Exhibit P5 judgment, wherein there was a further remand for considering a specific issue. It is this issue which is the bone of contention. On remand, the Labour Court again passed Exhibit P7, wherein not only the reduction of commission from 3% to 2.5%; the reduction from 3.5% to 3% was also interfered with. Whether the scope of remand extended to that, is the contention raised herein, by the Management. - 3 - WP(C).No.24325 of 2011 5. The learned counsel appearing for the Management, would contend that even as per the award in Exhibit P4 the issue dealt with and answered was only with respect to Exhibit P2 reduction. Hence, there could not have been a further consideration of the justifiability of Exhibit P1, is the argument. 6. Going by Exhibit P4 award, the issue referred was specifically the reduction of the commission, which takes in both Exhibits P1 and P2. Further, though the Labour Court initially, confined its award to Exhibit P2 reduction, the Union was also before this Court, resulting in Exhibit P5. Exhibit P5 held so: “10. But when it came to W10/Ext.P1, the Labour Court proceeded to hold that there is no evidence to show that any other workmen sought to be represented by the Union were in the service of the Bank. Therefore, there was a denial of relief in relation to the reduction brought about by Ext.P1, i.e., W10. There is substance in the contention raised by the management that if that be so, on a parity of reasoning, same reasoning should have followed in relation to W11 also. But on a perusal of the award, I - 4 - WP(C).No.24325 of 2011 find that the Tribunal has not really gone into the aspects as to how many of the deposit collectors were in the service of the Bank either on the date of Ext.P1 or on the date of Ext.P2. 11. Thus, while affirming the award to the extent to which the Labour Court has found that there should not have been a reduction of the commission payable to the deposit collectors./workmen unilaterally without notice, I am of the view that the Labour Court should again consider how many deposit collectors were in the service of the Bank on the date of W10 and W11. Award should therefore, be passed with specific reference to the said aspect.”. 7. W10 is Exhibit P1 and W11 is Exhibit P2. There is some confusion with respect to the reference to the Exhibits in paragraph 10. The Labour Court did not look into whether there were any workmen affected by W10/Exhibit P1; i.e, whether there were any workmen in the employment of the Management who had been granted commission at the rate of 3.5%, which was reduced unilaterally. The said issue was also directed to be considered and what was - 5 - WP(C).No.24325 of 2011 intended by paragraph 10 is that the principle which applies to W11 (Exhibit P2) should also apply to W10 (Exhibit P1). However, it was stated so: - “... same reasoning should have followed in relation to W11 also”. This should have been ideally W10. This Court, in any event, specifically directed both the reductions to be considered 8. In such circumstance, this Court does not find any infirmity with respect to Exhibit P7 award passed. However, it is made clear that only those who were in the employment of the Bank as on the date of W10/Exhibit P1 would be entitled to be continued at 3.5% commission. The same would apply to W11/Exhibit P2 also; and only those employees who had the benefit of commission at 3% would be entitled to the benefit of the award. 9. The learned counsel for the petitioner would further submit that, challenging Exhibit P5 judgment there were two Writ Appeals, bearing Nos.1446 of 2011 and 1466 of 2011; both filed by the Management, which were dismissed on 12.08.2014. Definitely, any further challenge - 6 - WP(C).No.24325 of 2011 made would regulate the orders passed by the Labour Court, which is affirmed by this Court as of now. The writ petition would stand dismissed, with the above reservation. Sd/K.Vinod Chandran, Judge vku. ( true copy )