Madras High Court
Indian Overseas Bank Officers' Union, ... vs Indian Overseas Bank, Central Office, ... on 11 May, 1993
Equivalent citations: (1995)ILLJ719MAD, (1993)IIMLJ553
Author: A.R. Lakshmanan
Bench: A.R. Lakshmanan
ORDER A.R. Laskhmanan, J.
1. W. P. No. 3834 of 1992 has been filed by the petitioner for the following relief :
"... to issue a writ or order or direction in the nature of certiorarified mandamus calling for the records connected with the settlement dated 12.11.1990 and quash clause 5(a) of the settlement dated 12.11.1990 as illegal and against law and direct the respondent to give equal opportunity to the employees of the erstwhile B. O. T. Limited in promotion and other allied avenues...."
2. The said writ petition is filed by Indian Overseas Bank Employees' Association for issuing a writ of certiorarified mandamus calling for the records in connection with the settlement dated 12.11.1990 entered into between the management of Indian Overseas Bank and all India Overseas Bank employees' Union and quash clause 5(a) of the aforesaid settlement and direct the respondent to give equal opportunity to the employees of the erstwhile Bank of Tamil Nadu Limited in promotion and other allied avenues.
3. The case of the petitioner is that the Reserve Bank of India on 19.8.1989 declared moratorium on Bank of Tamil Nadu Limited and subsequently under a scheme of amalgamation, the Bank of Tamil Nadu Limited was amalgamated with the respondent with effect from 20.2.1990. According to the petitioner, the Bank of Tamil Nadu Employees' Union was enjoying a majority status and after amalgamation, the petitioner association became a minority union in Indian Overseas Bank. Under the scheme of Amalgamation read with the relevant provisions of the Banking Regulations Act, 1949, all the employees of Bank of Tamil Nadu were transferred to Indian Overseas Bank with effect from 19.8.1989 and such employees were guaranteed the same terms and conditions of service as applicable to them immediately before the close of the business on 19.8.1989. Such terms and conditions of service were protected for a period of three years. On completion of three years, the service conditions of the employees of the respondent-Bank will automatically apply to the employees of the erstwhile Bank of Tamil Nadu Limited (EBOT in short). Option is also given to the respondent Bank to extend the service conditions of its employees to the employees of E. B. O. T. at any time even before the expiry of three years.
4. According to the petitioner, the respondent entered into a separate settlement on 12.11.1990 with All India Overseas Bank Employees' Union (A. I. O. B. E. U. in short), extending the benefits and the terms and service conditions that were applicable to the Award Staff of the respondent (workmen category of the respondent) to the award staff E. B. O. T. (workmen category of the E. B. O. T). The petitioner is challenging clause 5(a) of the aforesaid settlement dated 12.11.1990 under which it is provided that the computation of past services rendered by the employees of E. B. O. T. for the purpose of promotion from cadre to cadre, entrustment of special Assistant duties, entrustment of minor supervisory duties, Head Messenger duties etc., shall be in the ratio of 2 : 1. That is two years of service in E. B. O. T. will be treated as one year service in respondent-Bank. The contention of the petitioner is that this term is against the basic principle of the scheme of amalgamation, that the same is opposed to clause 11 of the amalgamation scheme that the award staff of E. B. O. T. is subjected to hostile discrimination and that no settlement could be arrived at under the Industrial Disputes Act, 1947 (I. D. Act - in short) and the Scheme framed thereunder.
5. The respondent-Bank filed a counter-affidavit inter alia stating that 90 per cent of the Award Staff (Workmen of the E. B. O. T.) became the members of the All India Overseas Bank employees' Union which is the majority recognised Union in the respondent Bank and that only 50 employees chose to join the writ petitioner's union. After negotiation with the recognised majority union regarding the salary, status and the conditions of service of the employees of the E. B. O. T. a settlement was reached on 12.11.1990 in accordance with Sec. 18(1) of the Industrial Disputes Act. Even the members of the petitioner, who were the employees of E. B. O. T. accepted the benefits under the Settlement aforesaid without demur. After the lapse of one and half years, the petitioner has chosen to challenge the portion of the aforesaid settlement.
6. According to the respondent, all the employees of E. B. O. T. including the members of the petitioner have accepted the benefits of the settlement dated 12.11.1990 without any reservation and that therefore it is not open to the petitioner to challenge a portion of the aforesaid settlement. It is further stated in the counter affidavit that the remedy of the petitioner is to raise an industrial dispute, in case they are aggrieved. It is denied that the settlement dated 12.11.1990 is contrary to the Scheme of Amalgamation. It is seen from the counter affidavit that E. B. O. T. was having 102 branches as compared with the respondent which has about 1,200 branches. Similarly, E. B. O. T. had only about 800 employees including officers, whereas the respondent has about 28,000 employees. The experience and exposure of the employees of E. B. O. T. is not the same as that of the employees of the respondent. Their job knowledge is also not the same. It is in the above background the parties aggrieved by clause 5 of the Settlement that the service conditions of the employees of E. B. O. T. absorbed in Indian Overseas Bank will be taken into account only in the ratio of 2 : 1 for the purpose of promotion, entrustment of minor supervisory duties, etc.,
7. It is also the case of the respondent that for all other purposes the services rendered by the employees of E. B. O. T. will be counted in full. The respondent also stated that as a result of the scheme of amalgamation the employees of E. B. O. T. got a steep increase in salary because the scales are generous in Indian Overseas Bank.
8. The writ petitioner has filed a reply affidavit more or less repeating the allegations contained in the affidavit filed in support of the W. P. No. 3834 of 1992. Significantly, the statement of the respondent Bank that the employees of E. B. O. T. including the members of the writ petitioner's Union has accepted the benefit of the settlement dated 12.11.1990 has not been denied.
9. I have heard Mr. K. V. Ananthakrishnan, learned counsel for the petitioner and Mr. N. G. R. Prasad, learned counsel for the respondent Bank. Mr. K. V. Ananthakrishnan learned counsel appearing for the petitioner in both the above writ petitions would submit that the employees of E. B. O. T. on absorption into the respondent Bank pursuant to the scheme of amalgamation have statutory right to enjoy the same terms and conditions of service which they were enjoying under E. B. O. T. that the employees of E. B. O. T. are guaranteed the same terms and conditions of service under clauses 10 & 11 of the scheme of amalgamation and that for the purposes of promotion, entrustment of Special Assistant duties, entrustment of minor supervisory duties, Head Messenger duties etc., the weightage of two years service in E. B. O. T. cannot be treated as one year service in the respondent Bank. Mr. K. V. Ananthakrishnan has placed strong reliance on the following decisions reported in : State Bank of Travancore v. Elias Elias, (1970) 2 L. L. J. 424, P. J. Thomas v. Union of India, (1972) 2 LLJ 312, P. J. Thomas v. Union of India, (1975) 1 LLJ 284, State Bank of Travancore v. Association of employees, 1978 2 LLJ 305, Leelavathi v. State Bank of India, (1986) 1 LLN 271, Canara Bank v. M. S. Jasra, (1992) 1 LLN 914, S. M. Pandit v. State of Gujarat, , Krishnamurthy, C. K. v. Director General, P. and T. 1978 SLJ 394 Mohd. Shujat Ali v. Union of India, , S. L. Sachdev v. Union of India, (1981) 1 SLJ 115, S. R. Sharma v. P. S. E. B. (1981) 1 SLJ 654, B. Vittai Shetty v. Indian Bank & Ors. (1983) 2 SLJ 596, R. Ranganathan v. Government of Tamil Nadu, (1985) 1 SLJ 642 and K. R. Pushpadharan, etc. v. The Zonal Manager, F. C. I. Madras (1983) 1 SLJ 412.
10. Mr. N. G. R. Prasad, learned counsel appearing for the respondent would submit that it is not open to the writ petitioner to challenge a portion of the settlement dated 12.11.1990 when it hardly represents ten per cent of the employees of E. B. O. T. absorbed in the respondent-bank, that it is not open to the petitioner Union to approbate and reprobate because all the employees have accepted the benefits under the Settlement. According to the learned counsel, W. P. No. 3834 of 1992 is not maintainable because what is challenged in the W. P. No. 3834 of 1992 is a clause in the settlement reached in accordance with Sec. 18(1) of the Industrial Disputes Act. Reliance was placed on the Judgment of the Division Bench of our High Court in Workmen of B. and C. Mills v. B. and C. Mills, (1982) 2 LLJ 90 and also on an unreported judgment dated 29.9.1992 in W. A. Nos. 1280 to 1282 of 1991.
11. In order to appreciate the rival contentions made by both parties, it is necessary for me to refer to the following undisputed facts. E. B. O. T. was amalgamated with the respondent-Bank with effect from 20.2.1990 pursuant to a scheme of amalgamation framed under Section 45 of the Banking Regulations Act, 1949. All the employees of E. B. O. T. numbering about 800 opted to become the members of the respondent. Out of 800, 530 belong to the Award Staff. On amalgamation, 90 per cent of the Award Staff of the E. B. O. T. became the members of All India Overseas Bank Employees' Union which is the majority recognised union in the respondent-Bank. The respondent has about 28,000 employees working in or about 1,200 branches. There can be no dispute that E. B. O. T. was a small private bank compared to the respondent, which is a nationalised bank and consequently, the experience and exposure of the E. B. O. T. cannot be the same both qualitatively and quantitatively as that of the employees of the respondent.
12. On 12.11.1990, a Settlement was reached between the respondent and the All India Overseas Bank Employees' Union under Sec 18(1) of the Industrial Disputes Act relating to conditions of service of the award staff of E. B. O. T. The Settlement dealt with pay scales, increments, dearness allowance, special allowance, weightage of service, loans and advances, leave rules, medical aid, leave fare concession, provident fund and other benefits. It is specifically provided in the settlement that the terms and conditions of service of the employees of E. B. O. T. absorbed in the respondent-bank will be the same as prevalent in the respondent-bank in respect of matters not specifically provided for in the settlement. The writ petitioner in W. P. No. 3834 of 1992 has confined its challenge only to Clause 5(a) of the aforesaid settlement dated 12.11.1990 which is extracted below :
"5. Weightage of service : (a) The service of workmen staff of the erstwhile bank for the purpose of arriving at seniority for promotion from cadre to cadre, entrustment of special Assistant duties, entrustment of minor supervisory duties, Head Messenger duties shall be in the ratio of 2 : 1
(b) Their seniority for the purpose mentioned above shall be reckoned from the date they were taken on probation at the erstwhile Bank of Tamil Nadu Limited.
(c) The period of apprenticeship put in by any workman employee of the erstwhile bank shall be computed for arriving at seniority for the purposes mentioned 5(a) above as 3 : 1 i.e., for three months of apprenticeship shall be considered as one month of service in Indian Overseas Bank".
13. It cannot be gainsaid that the employees of E. B. O. T. including the members of the writ petitioner (in W. P. No. 3834 of 1992) have accepted the various benefits provided under the Settlement dated 12.11.1990. The writ petitioner (in W. P. No. 3834 of 1992) which represents hardly 10 per cent of the employees of E. B. O. T. have confined their challenge only to clause 5(a) of the Settlement. As I have already referred the said Settlement was one reached under Sec. 18(1) of the Industrial Disputes Act. At this stage, it is useful to refer to the decision reported in Hebertsons Limited v. Workmen, AIR 1977 SC. 322, wherein in paragraph 27 it has been held as follows :
"It is not possible to scan the settlement in bits and pieces and hold some parts good and acceptable and others bad. Unless it can be demonstrated that the objectionable portion is such that it completely outweighs all the other advantages gained the Court will be slow to hold a settlement as unfair and unjust. The settlement has to be accepted or rejected as a whole and we are unable to reject it as a whole as unfair or unjust".
14. Applying the above ratio laid down in the said decision to the facts and circumstances of the present case, it has to be held that there is no merit at all in the contention of Mr. K. V. Ananthakrishnan learned counsel appearing for the petitioner that clause 5(a) of the settlement dated 12.11.1990 is unfair and illegal. Having accepted the various benefits under the settlement the petitioner is precluded from questioning the validity of clause 5(a) of the settlement. Therefore, there is no merit in the contention that the said clause 5(a) of the settlement is contrary to the scheme of amalgamation framed under Sec. 45 of the Banking Regulation Act. Clause 11 of the Scheme of Amalgamation reads as follows :
"11. The transferee (IOB) Bank shall, on the expiry of a period not longer than three years from the date on which this scheme is sanctioned, pay or grant to the employees of the transferor bank the same remuneration and the same terms and conditions of service as are applicable to the employees of the corresponding rank or status of the transferee bank subject to the qualifications and experience of the said employees of the transferor bank being the same as or equivalent to those of such other employees of the transferee bank.
Provided that if any doubt or difference arises as to whether the qualifications or experience of any of the said employees are the same or equivalent to the qualifications and experience of the other employees of corresponding rank or status of the transferee bank or as to the procedure or principles to be adopted for the fixation of the pay of the employees in the scales of pay of the transferee bank, the doubt or difference shall be referred to the Reserve Bank of India whose decision shall be final".
Therefore, the said clause 11 of the Scheme of Amalgamation does not provide for the same terms and conditions of service to the E. B. O. T. amalgamated with Indian Overseas Bank. There is a clause which says that is subject to qualification and experience. The said clause states that the transferee bank shall grant the same remuneration and same terms and conditions of service as are applicable to the employees of the corresponding rank or status of the transferee Bank subject to the qualification and experience of the said employees of the transferor bank being the same as or equivalent to those of such other employees of the transferee bank. Having regard to all these facts, a provision was also made in the Settlement dated 12.11.1990 in clause 5 under which the parties have inter alia agreed that the services of the workmen of E. B. O. T. for the purpose of arriving seniority, promotion, entrustment of minor supervisory duties etc., will only be in the ratio of 2 : 1. The parties to the said Settlement have also agreed upon that clause having due regard to the qualifications and experience of the employees of the E. B. O. T. vis-a-vis the qualifications and experience of the employees of the respondent-Bank. Such a clause entered into between parties negotiation and deliberation cannot be by no stretch of imagination be characterised as unreasonable. Unfair and discriminatory. Equally, untenable is the contention of the learned counsel appearing for the petitioner that the employees of the E. B. O. T. are entitled to identical service conditions of the employees of the respondent-bank. In fact, clause 11 does not automatically entitled the employees of the E. B. O. T. to have the same terms and conditions of service of the employees of the respondent-Bank.
15. I am also of the view that since the majority of the employees of the E. B. O. T. have accepted the above settlement in toto, it is not open to the petitioner's union representing 10 per cent of the employees of E. B. O. T. to challenge the validity of a portion of the said settlement. What is good for the majority is good for the minority and that is the Rule of democracy. The petitioner cannot be permitted to tear the settlement dated 12.11.1990 in bits and pieces. The settlement has to be accepted or rejected as a whole. There cannot be mid way exercise. That is precisely what the Supreme Court has depreciated in Hebertsons Limited v. Workmen, AIR 1977 SC 322, case referred to above.
16. Further it is also to be noticed that the writ petitioner is fully aware of the fact that the Settlement dated 12.11.1990 was entered into between the respondent Bank and the A. I. O. B. E. U For the reasons best known to the petitioner the petitioner has failed to make the said A. I. O. B. E. U as a party to the writ petition. Therefore, I am of the view that the W. P. No 3834 of 1992 deserves to be dismissed on the ground of non-joinder of necessary parties to the proceedings. Having due regard to my above views, it is unnecessary to refer and consider the various decisions cited by Mr. K. V. Ananthakrishnan, learned counsel for the petitioner and also by Mr. N. G. R. Prasad learned counsel for the respondent during the course of their arguments.
17. W. P. No. 3833 of 1992 is filed by Indian Overseas Bank Officers' Union for issuing a writ of certiorarified mandamus to call for the records connected with the joint Minutes dated 30.5.1991, to quash the same as illegal and against law and direct the respondent to fit all the Officers in the cadres, as per the R. B. I. and Indian Banks Association Circulars and Rules and in consonance with the Scheme of Amalgamation. According to the petitioner, the respondent Bank entered into a joint Minute (dated on 30.5.1991 with Indian Overseas Bank Officers' Assn. (I. O. B. O. A. in short) under which the cadre, scale of pay, weightage of service and date of implementation of the same for the officers of the E. B. O. T. were fixed. It is the case of the petitioner that the said joint minutes is totally opposed to the scheme of amalgamation framed under the Banking Regulations Act, 1949. In particular the petitioner challenges one of the minutes relating to the computation of past service of the officer employee of E. B. O. T. for the purpose of promotion. Under the said Joint Minutes, the respondent and the I. O. B. O. A. have agreed with regard to the scale of pay, pay fixation, contribution to staff provident fund, weightage of service, procedure for disciplinary action in regard to the officer employee of E. B. O. T. absorbed into the services of the respondent pursuant to the scheme of Amalgamation. Clause 4 of the said Joint Minutes deals with weightage of services Under which it was agreed that weightage for service to the officers of E. B. O. T. for the purpose of promotion in the respondent Bank shall be in the ratio of 2 : 1 i.e., for every two months' of service as Officer in E. B. O. T. shall be considered as one month of service in the respondent-bank. Even though the petitioner has questioned the validity of the Joint Minutes dated 30.5.1991 the petitioner has confined its arguments only to clause pertaining to the service weightage given to the Officer of the E. B. O. T. The petitioner would place reliance on clauses 10 and 11 of the scheme of amalgamation to the Award Staff (workmen of E. B. O. T.) on their absorption into the respondent in W. P. No. 3834 of 1992, which I have already dealt with in W. P. No 3834 of 1992 in detail. The construction placed on clause 11 of the scheme of amalgamation with regard to the Award Staff will squarely and equally govern the case of the officers as well. Hence, I hold that the Joint Minutes dated 30.5.1991 is not violative of clause 11 of the scheme of amalgamation. In this case also, the majority of the officers of the E. B. O. T. have accepted the various benefits of the Joint Minutes dated 30.5.1991 and the members of the petitioner have also accepted substantial monetary benefits by way of arrears of salary ranging between Rs. 15,000/- and Rs. 30,000/- in terms of the Joint Minutes dated 30.5.1991. On amalgamation of E. B. O. T. with the respondent 195 out of 227 officers became the members of I. O. B. O. A. which represents majority of the officers of the respondent, who has been granted recognition as representatives in the respondent-bank. The I. O. B. O. A. has taken into account the size of the E. B. O. T its turnover, the nature of experience of the officers of E. B. O. T. vis-a-vis the officers of the respondent Bank and has also agreed that the service of the employees of the E. B. O. T. will be considered in the ratio of 2 : 1 for the purpose of promotion. I am also of the view that the Joint Minutes dated 30.5.1991 particularly relating to the service weightage is not either violative of Clause 11 of the Scheme of Amalgamation or discriminatory or unreasonable. Further, this writ petition deserves to be dismissed for non-joinder of necessary parties viz., I. O. B. O. A. who were a party to the Joint Minutes. Excepting the fact that the W. P. No. 3833 of 1992 relates to the Officers and that there was a Joint Minutes on 30.5.1991 between the respondent and the I. O. B. O. A. pertaining to the service conditions of the Officer employee of E. B. O. T. the contentions raised by the learned counsel for the petitioner are the same in W. P. No. 3834 of 1992.
18. Even though the petitioner association is not a party to the Settlement dated 12.11.1990 they have accepted the benefits of the Settlement in toto without any demur. Therefore in my view, they cannot at this stage challenge the Settlement and that too in a proceedings under Art. 226 of the Constitution of India. The majority of the Bank of Tamil Nadu employees are the members of the All India Overseas Employees' Union which has entered into the settlement in question. That Union has not chosen to challenge the Settlement. To accept the arguments of Mr. K. V. Ananthakrishnan which represents a negligible number of the employees of the Bank of Tamil Nadu would amount to upsetting a settlement with the majority workers. This would result in industrial unrest where industrial peace prevails after the settlement dated 12.11.1990. The main contention of Mr. K. V. Ananthakrishnan learned counsel who represents the petitioner association and the Officers' Association appears to be that when once the employees have been fitted into a particular grade having regard to their qualification and experience, there can be discrimination for the purpose of promotion, which in my opinion overlooks clause 11 of the Scheme which states that the employees of the Bank of Tamil Nadu will be given the same terms and conditions as are applicable to the employees of corresponding rank or status of the transferee Bank (Indian Overseas Bank), subject to the qualification and experience of the Bank of Tamil Nadu employees being the same or as equivalent to those of such other employees of Indian Overseas Bank. Therefore experience can be a factor in deciding the terms and conditions of service of the employees of the Bank of Tamil Nadu and it does not mean that if for the purpose of pay and allowance they are fitted into a particular grade in the Indian Overseas Bank they cannot be differentiated for the purpose of promotion for which the criteria is different. In fact, this identical argument was rejected by the Supreme Court in Roop Chand Adalakha v. Delhi Development Authority, .
There the diploma and degree holders were integrated into the cadre of Assistant Engineers. The contention was that for further promotion to the post of Executive Engineers diploma holders cannot be discriminated against and that it should be the same amount of experience. The Apex Court in that case has held that these are all the matters essentially of policy and that the State can prescribe more years of experience for Diploma holders. The petitioner Association's contention runs counter to the said judgment of the supreme Court. If the petitioner Association and the Union had any dispute they should have approached the Reserve Bank of India under the proviso to clause II of the Scheme. But they did not do so. The proviso itself says that the decision of the Reserve Bank of India will be final, which means that the Reserve Bank of India should have been given an opportunity to decide, and only if its decision is arbitrary, can it be attacked under Art. 226 of the Constitution of India.
19. As mentioned above, the decisions cited by Mr. K. V. Ananthakrishnan are hardly relevant because the scheme of amalgamation itself gives a right to the Bank to decide the terms and conditions of service on the basis of qualification and experience. When once experience wise Bank of Tamil Nadu Employees have not been treated on par with employees of Indian Overseas Bank for the purpose of promotion, they cannot have a prayer that they should be treated at par.
20. As rightly contended by Mr. N. G. R. Prasad, learned counsel appearing for the respondent, the provisions of the scheme cannot override the provisions of the Industrial Disputes Act, 1947. The Industrial Disputes Act is a special Act, whereas the Banking Regulations Act is a general Act. The settlement dated 12.11.1990 will prevail even though there is no conflict between the provisions of the scheme and the settlement. The Apex Court in the decision reported in L. I. C. v. D. J. Bahadur, (1981) 1 LLJ 1, has held that the Industrial Disputes Act prevails over the L. I. C. Act.
21. As stated above, W. P. No. 3834 of 1992 relates to award staff. The same arguments relating to Officers will squarely apply to the case of these employees as well. The petitioners are challenging the settlement dated 12.11.1992. In effect, the petitioner has challenged a particular clause in the settlement. In fact, this point viz., no writ will lie challenging a settlement' is covered by a Judgment of a division Bench of this Court reported in Workmen of B. and C. Mills v. B. and C. Mills, (1982) 2 LLJ 90.
22. Therefore there are already no merits in both the above writ petitions and hence they are dismissed. However, there will be no order as to costs.