Kerala High Court
State Bank Of Travancore vs P.Gopinathan Nair on 10 June, 2011
Author: J.Chelameswar
Bench: J.Chelameswar, Antony Dominic
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 2185 of 2009()
1. STATE BANK OF TRAVANCORE,
... Petitioner
2. THE DEPUTY GENERAL MANAGER (F & A),
Vs
1. P.GOPINATHAN NAIR,
... Respondent
For Petitioner :SRI.P.RAMAKRISHNAN
For Respondent :SRI.K.SUBASH CHANDRA BOSE
The Hon'ble the Chief Justice MR.J.CHELAMESWAR
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :10/06/2011
O R D E R
J.CHELAMESWAR, C.J. & ANTONY DOMINIC, J.
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W.A. NO. 2185 OF 2009
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Dated this the 10th day of June, 2011
J U D G M E N T
J.Chelameswar, C.J.
The respondents in WP(C) No.27557/05 are the appellants herein aggrieved by the judgment in the above mentioned writ petition dated 12th of August, 2009. The sole respondent herein is the petitioner in the said writ petition. The respondent retired from the service of the first appellant herein on 30th June, 1993. At that point of time, he was working as Chief Development Manager at the Head Office of the appellant Bank. The writ petition from out of which the instant appeal arose was filed after 12 years of his retirement with the prayers as follows:-
a) issue a writ of mandamus or any other appropriate writ direction or order directing the respondents to fix the pension commuted value of pension gratuity and grant the arrears of pension, salary etc due to the petitioner after fixing the scale of pay on the basis of the revision from 1.11.1992 as is clear from Ext.P4 note and give the arrears with 18% interest.
b) to call for the records leading to Ext.P3 reply and all the further proceedings thereon by issuing a writ in the nature of certiorari or any other appropriate writ direction or order.
WA No.2185/09 : 2 :
2. The factual background in which the writ petition arose is as follows:-
3. A document titled "joint note - on the salary revision for officers" (Ext.P4) evidenced the conclusions of discussions between the Indian Banks' Association and the various organizations of the officers of the Banks which are members of the above mentioned Association. Obviously there were demands from the officers of the various banks for the revision of the salaries and other emoluments payable to the officers by the various banks. After an appropriate discussion, the conclusions of the discussions were reduced into writing, the preamble to the above mentioned document states as follows:-
The IBA's High Power Committee for Discussions with Officers' Organisations hold several rounds of discussions with the representatives of the Officers' Organizations on the salary revision for officers in public sector banks. During these discussions common views have emerged between the two sides. The outcome of such discussions acceptable to both sides is given in the Annexure-I.
4. The actual conclusions arrived at the discussions are contained in Annexure-I to the above statement. For the purpose of the present case, we are not required to examine either the joint note or the said Annexure-1 except Clause 15 of Annexure 1, WA No.2185/09 : 3 : which deals with the effective date from which various monetary benefits contemplated under the said settlement are to be given to the employees. The said clause reads as follows:-
15. Date of Effect For payment of arrears, the benefits under various provisions as above shall be effective from the dates specified hereunder:-
W.E.F.
(i) House Rent Allowance on revised basic pay 1.11.1992
(ii) Scales of Pay and Dearness Allowance 1.07.1993
(iii) City Compensatory Allowance, Provident Fund, Advance Increment and Fixed Personal Allowance 1.11.1993
(iv) Gratuity, Medical Aid, Hospitalisation Expenses, Second Stagnation Increment in Scale III, Professional 1.11.1994 Qualification Allowance Recovery of House/Furniture Rent
(v) Categorisation of Branches May, 1995
(vi) Halting Allowance 1.06.1995.
5. It can be seen from the above extracted clause that different effective dates are agreed upon with reference to different components of pay due to the employees such as (1) Salary and Dearness Allowance (2) House Rent Allowance (3) City Compensatory Allowance etc. We make it clear that the said joint statement itself was signed on the 23rd of June, 1995 by all the concerned parties. The effective dates with reference to each one WA No.2185/09 : 4 : of the components mentioned above are all anterior to the date of the joint note referred to above. In other words, the parties agreed that the employer should pay and the employee should receive these various benefits with retrospective effect though the effective date for the retrospectivity varies with each of the components of the monetary benefits due to the employees.
6. The gist of the grievance of the respondent is that the respondent is entitled for revision of salary w.e.f. 1/11/92, on which date, the respondent was still in the service of the Bank. Such claim of the respondent is based on a communication dated 11th of July, 1995 styled as staff circular No.36/1995. The relevant portion of the said circular relied on by the respondent for his claim reads as follows:-
To facilitate the calculation of salary arrears, the following charts are enclosed:
1. Combined Fitment Chart for all scales (Annexure I)
2. Statement showing revised Dearness Allowance for the period July, 1993 to July 1995 (Annexure II)
3. Statement showing revised City Compensatory Allowance and House Rent Allowance (Annexure III).
Branches may disburse an ad hoc amount equivalent to the net arrears payable for the period November, 1992 to June, 1995 and further continue to WA No.2185/09 : 5 : pay the ad hoc amount equal approximately to the increase in the emoluments, on the basis of month to month calculations of old and revised emoluments from July, 1995 onwards till formalities for amending the regulations have been completed.
7. The respondent believed that the reference to the period between November, 1992 to June 1995 in the above mentioned staff circular would entitle him for claiming the benefit of revised pay scales in all its components w.e.f. November, 1992. Such an interpretation found favour with a learned Judge of this Court. By the judgment under appeal, the learned Judge held as follows:-
But, there is no positive averment or claim as to on which date the revision was given effect in the respondents -Bank. Learned counsel for the petitioner has pointed out that the petitioner has relinquished his claim for arrears with effect from 1.11.1992, especially in the light of Clause 15 to Ext.P4 Joint Note. In the absence of any specific claim by the Bank that the revision of scale of pay was implemented with effect from one particular date, this Court has no other way, but to rely upon the provisions contained in Ext.P4 itself, especially, when the Bank has admitted that they implemented the same. From Ext.P4, it can be seen that there is a specific observation or direction to the effect that "Branches may disburse an adhoc amount equivalent to the net arrears payable for the period November, 1992 to June 1995 and further continue to pay the ad hoc amount equal approximately to the increase in the emoluments, on the basis of month to month calculations of old and revised emoluments from July, 1995 onwards till formalities for amending the regulations have been completed." It is pertinent to WA No.2185/09 : 6 : note that under clause 15 of Ext.P4 Joint Note, the cut off date for arrears with respect to scales of pay and dearness allowance is with effect from 1.7.1993.
Besides the above, it is relevant to note that in Annexure-I to Ext.P4, there is a statement regarding the salary revision for Officers Combined Fitment Chart for existing Officers as on 1.11.1992. From the above, it is clear that the revision has to be implemented with effect from 1.11.1992.
8. Hence the appeal filed by the employer. The learned counsel for the appellants Sri.P.Ramakrishnan submitted that the conclusion reached by the learned Judge that there is no positive averment regarding the date from which the pay revision was given effect to in the appellant bank is unsustainable. The learned counsel submitted that Ext.P4 joint note categorically stipulates the effective dates with reference to each of the components of the monetary benefits agreed to be given to the employees and Clause 15 is very categoric that the scales of pay and dearness allowance are agreed to be revised only w.e.f. 1/7/93. By the said date, the respondent had already retired from service, ie., on 30th June, 1993. Although the respondent is entitled for the benefit of the house rent allowance fixed on the revised pay, which is required to be paid with effect from 1st of November, 1992, the respondent is not entitled for any other WA No.2185/09 : 7 : benefit in terms of the joint note.
9. On the other hand, learned counsel for the respondent Sri.S.P.Aravindakshan Pillai argued placing reliance on the staff circular No.36/95 referred to earlier and also the Annexure to the said circular titled "Salary Revision for Officers Combined Fitment Chart for Existing Officers as on 1.11.1992", that the benefit of the pay revision is intended to be given with effect from November, 1992 and the respondent unjustly denied the same.
10. The legal relationship between an employer and an employee is contractual. However under the Constitution, in the context of employment under the State, the legal relationship is described to be one of "status" and normally regulated by law. Even in the context of employment by private employers (non- state), terms and conditions of such employment can always be the subject matter of legislation by a competent legislature. However in the absence of any specific legislation or the existence of any other instrument, which has the force of law regulating the terms of employment, the terms and conditions of the employment are always the subject matter of a contract WA No.2185/09 : 8 : between the employer and employee. In the context of certain categories of the persons employed in industrial establishments, having regard to the nature and scale of the employment and the need to protect the interest of the employees who generally have an unequal bargaining power compared to the employer, the service conditions are regulated in this country in the manner provided under the Industrial Disputes Act and various other allied enactments governing the field. Officers of the Banks such as the respondent herein do not strictly fall within the definition of "workmen" as defined under the Industrial Disputes Act or other allied enactments. Notwithstanding such legal position, the magnitude of work force in the category of officers employed under various banks in the country gives them a certain amount of collective bargaining power with the employers, that is the Banks. Obviously in a bid to secure a peaceful and congenial environment, the Banks and the Officers' Association thought it fit to have a settlement of the various conditions of service of the officers of the Banks through negotiations. Such negotiations fructified into Ext.P4 joint note. Therefore, the rights and WA No.2185/09 : 9 : obligations of the parties to the joint note emanate from the said document alone which in substance is akin to a settlement under Section 18 of the Industrial Disputes Act.
11. In adjudicating the claim like the one raised by the respondent herein, in our opinion, the Court is required only to look at the document (Ext.P4 in the instant case) which creates the rights and obligations and reliance upon other documents like the staff circular No.36/95 in our view is not legally permissible. If the rights and obligations of the parties emanate out of Ext.P4 document, the document is to be interpreted to ascertain the rights and obligations flowing out of the said document in the light of the settled principles of interpretation of documents alone. One of the settled principles of interpretation of the documents is that one external evidence is inadmissible with respect to the content of a document. The principle contained in Section 91 of the Evidence Act in our opinion squarely is applicable to the case on hand. Section 91 of the Evidence Act in so far as it is relevant reads as follows:-
WA No.2185/09 : 10 :
91. Evidence of terms of contracts, grants and other dispositions of property reduced to form of documents:-
When the terms of contract, or of a grant, or of any other disposition of property have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself, or secondary evidence of its contents in cases in which secondary evidence is admissible under the provisions hereinbefore contained.
12. It can be seen from the above where the terms of contract are reduced to the form of a document, no evidence in proof of the terms of such contract is admissible. Irrespective of the fact whether Section 91 is applicable to the document such as Ext.P4, in our opinion, the principle underlying Section 91 of the Evidence Act should govern the situation. The rights emanating from Ext.P4 cannot either be enlarged or curtailed by either of the parties to the settlement evidenced by Ext.P4 unilaterally. Assuming for the sake of argument that the intention of the author of staff circular No.36/95 is that the arrears due to the officers of the appellant Bank are required to be paid with effect from November, 1992. Such an intention in our opinion cannot either bind the Bank which is a body corporate nor create any WA No.2185/09 : 11 : right in favour of the officers of the Bank.
13. Coming to the Annexure to the above mentioned staff circular referred to earlier styled as 'salary revision for officers combined fitment chart for existing officers', as rightly explained by the learned counsel for the appellants that as the house rent allowance is required to be paid w.e.f. 1/11/92 calculated at the rate of 13% of the basic pay of the revised pay scales, for the limited purpose of determining the amount of house rent allowance payable, the said chart is prepared, and therefore, the reliance on the said chart for conferring the right on the respondent of making him entitled for the benefit of the entire revised pay scales w.e.f. November, 1992 is uncalled for.
14. Learned counsel for the respondent however relied upon the judgment in WA 1584/2002 dated 8/8/05 in support of his submission. Unfortunately the full text of the judgment is not made available to us and only a short note reported in Syndicate Bank v. Celine Thomas (2005(4) KLT Page No.81) is placed before us. The relevant portion of the said short note relied on by the learned counsel reads as follows:
WA No.2185/09 : 12 :
"The 'mini' classification, which is complained of, is a serious one. Even, admittedly by the Banks concerned, though they have entered into Memorandum of Understanding only on 23.6.1995, revised gratuity based on the revised pay had been given to those who retired prior to 23.6.1995, but on or later than 1.11.1994. At the same time, revision of pay scales takes effect from 1.11.1992. In such circumstances, denial of the very same benefits to those who retired between 1.11.1992 to 1.11.1994 amounts to mini classification offending the mandate of Article 14 of the Constitution of India. No nexus is pointed out for bringing any classification between those who retired between 1.4.1992 and 31.10.1994 and those who retired between 1.11.1994 and 23.6.1995. Both these artificial groups of retirees had retired from service prior to the date of arriving at the Memorandum of Understanding, but after the date of retrospectivity to the MOU. They therefore form themselves into one class as all of them retired later than the giving effect to the pay revision by the Memorandum of Understanding. When persons forming same class are treated differently it violates Article 14 of the Constitution denying them equal protection of law and equality before law. Denial of gratuity to the writ petitioners is therefore discriminatory.
15. The subject matter for discussion in the said judgment is the same joint statement which is the subject matter of discussion in the instant judgment. The Division Bench applied the doctrine of classification and found the same offensive of Article 14 overlooking the fact that such classification if any is a result of a negotiated settlement of the parties but not made by any statute or statutory instrument which derives its authority from the coercive power of the State. The invocation of Article 14 in the context of the negotiated settlement in question in our WA No.2185/09 : 13 : opinion is uncalled for.
In the circumstances, we are of the opinion that the judgment under appeal cannot be sustained. The same is therefore set aside. As a consequence, writ petition stands dismissed. Writ appeal is allowed.
J.CHELAMESWAR CHIEF JUSTICE.
ANTONY DOMINIC JUDGE.
Rp