Delhi District Court
Mohammed Naseem vs Bombay Mercantile CoOperative Bank ... on 18 November, 2016
IN THE COURT OF SHRI UMED SINGH GREWAL
POLCXVII ROOM NO. 22 :KKD COURTS: DELHI
DID 1399/16 (Old No. DID 78/10).
Unique ID No.02402C0221232010.
In the matter of :
Mohammed Naseem
R/o A238 DDA Flats, New Ranjeet Nagar,
New Delhi110008. ..............Workman
Versus.
Bombay Mercantile Cooperative Bank Ltd.
36, Netaji Subhash Marg, Darya Ganj,
New Delhi110002. ............. Management
DATE OF INSTITUTION : 05.08.2010.
DATE ON WHICH AWARD RESERVED : 26.10.2016
DATE ON WHICH AWARD PASSED : 18.11.2016
A W A R D :
1.This is a direct industrial dispute filed by the claimant under the Industrial Disputes Act, 1947 (hereinafter referred as "the Act") for reinstatement with continuity of service and full back wages.
2. Claimant's case is that management is a Multi State Cooperative Society doing the business of banking at various places including Delhi. He had joined it as a Clerk on 01.08.1981 DID 1399/16. 1/18 vide appointment letter dated 01.09.1982 in which there was no mention of his retirement age as 58 years. The management had entered into settlement with its employees on 09.01.1991 in which the retirement age of the employees was fixed as 60 years. During his tenure with the management, he was served a letter dated 01.06.2010 informing that he would be completing superannuation age of 58 years on 25.07.2010 and would be retiring on 01.08.2010. On enquiry, his superiors and seniors informed that in the year 2003, the management had come out with a circular dated 28.06.2003 by which the retirement age of the employees was reduced to 58 years from 60 years. On enquiry from the office bearers of the trade union, namely, Bombay Mercantile Bank Employees Union (Regd.), he came to know that the management cannot violate the settlement dated 09.01.1991. So, he protested proposed retirement age vide letter dated 07.06.2010 requesting the management to retire him only after attaining age of 60 years but the representation was not taken sympathetically and he was retired from service on 01.08.2010. No valid / legal / enforceable settlement was entered into between management and the claimant to reduce retirement age to 58 years. Settlement, if any, signed between management and any office bearer of the trade union is illegal and not enforceable as it did not have support of the trade union / majority of the workmen.
DID 1399/16. 2/183. Written statement is to the effect that management is a banking organization and therefore, the appropriate Court for such establishment is the Central Court and not Delhi Court as per Section 2(a) of the Act and hence this Court lacks jurisdiction to try and entertain the dispute. No demand notice was served upon the management before raising the industrial dispute. As per Section 10, the Labour Court can entertain only four kinds of disputes namely, against discharge, dismissal, retrenchment and termination, but the present one is not covered under any of those heads. It is not an industrial disputes because it does not fall under Section 2(a) and Section 2 (k) of the Act. The claimant was working as an Assistant Accountant at the time of retirement and he used to supervise the work of his subordinates and due to that reason he is not a workman. It has been admitted that memorandum of settlement was signed between management and workers on 09.01.1991 in which the retirement age of the employees was fixed as 60 years. It was agreed between management and its union vide agreement dated 24.06.2003 that the retirement age of the employee shall be 58 years and hence the circular was issued to employees fixing their age of retirement as 58 years. That agreement was signed by majority of the unions like Bombay Mercantile Cooperative Bank Employees Union and DID 1399/16. 3/18 Bombay Mercantile Cooperative Bank Officer's Association. It has been admitted that claimant had sent letter dated 07.06.10 requesting to retire him after attaining the age of 60 years, but that was not possible due to subsequent agreement and hence, he had retired on 01.08.10 after attaining the age of 58 years.
4. Following issues were framed on 06.09.2011:
1. Whether this Court has jurisdiction to entertain and try the present dispute? OPW.
2. Whether any notice was served on the management by the workman before filing the present dispute? If not, its effect? OPW.
3. Whether the dispute falls within Section 2A of the Industrial Disputes Act? OPW.
4. Whether the dispute is not maintainable as the same has not been espoused by any union of the workman? OPM.
5. Whether the services of the workman have been illegally terminated by the management? OPW.
6. To what relief, if any, the workman is entitled? OPW.
5. In order to substantiate the case, the claimant tendered his affidavit in evidence as Ex.WW1/A mentioning all the facts stated in statement of claim. He relied upon following documents :
1. Ex. WW1/1 is appointment letter dated 01.09.1982.
DID 1399/16. 4/182. Ex. WW1/2 is settlement dated 09.01.1991.
3. Ex. WW1/3 is copy of letter dated 01.06.2010.
4. Ex. WW1/4 is letter dated 07.06.2010.
6. The management examined its Branch Manager (Forex) Sh. Nazir Hasan as MW1, who repeated the contents of written statement and relied upon following documents:
1. Ex.WW1/2 is copy of memorandum of settlement dt. 09.01.91 between the union and management.
2. Ex.WW1/3 is letter dt. 01.06.10 issued by the management to the workman.
3. Ex.WW1/4 is letter dt. 07.06.10 written by the workman to the Administrator of the management.
4. Ex.WW1/M1 is an agreement between the management and union dt. 24.06.03.
5. Ex.WW1/M2 is circular dt. 28.06.03 issued by the managing director of management.
6. Ex.WW1/M3 is memorandum dt. 19.09.06 issued by the management to the workman.
7. Ex.WW1/M4 is office order dt. 04.01.07 issued by the management to the workman.
8. Ex.WW1/M5 is memo dt. 16.06.07 issued by the management to the workman.
9. Ex.WW1/M6 is office order dt. 25.10.07 issued by the management to the workman.
WORKMAN DID 1399/16. 5/18
7. Ld. ARM argued that claimant was working as Account Assistant with the management at the time of retirement. He admitted in cross examination that he was working as a Supervisor. So, he is not a workman. In support of relied upon 1. Management of Multan Sewa Samiti Charitable Eye Hospital Vs. P.O. Labour CourtII & Ors., W.P.(C) No. 1713/199 decided on 24.02.2012 and 2. Ashwani Kumar Kamboj Vs. Presiding Officer, Labour CourtII, Faridabad and Anr. 2013 (3) LLJ 436.
Ld. ARW argued that claimant had joined the management as Clerk and at the time of retirement, he was working as Assistant Accountant which is equivalent to a Senior Clerk. Nature of his duty was purely clerical and hence he is a workman.
8. In Management of Multan Sewa Samiti Charitable Eye Hospital (supra), the claimant was working as a Doctor with the management. The Hon'ble High court of Delhi held him not a workman under Section 2(s) of the Act. In Ashwani Kumar Kamboj (supra), the claimants were working as Assistant Engineers. They had their own independent register, different from what was meant for workers. They were neither members of workers union nor they were doing any supervisory work in the establishment. The Hon'ble High Court held them not workmen.
DID 1399/16. 6/18In the case in hand, it has been deposed by the claimant that he was appointed as a Clerk and at the time of retirement, his nature of duty was clerical. In office order Ex. WW1/M4, Ex. WW1/M5 and Ex. WW1/M6, the claimant has been described as Assistant Accountant. It is the case of both parties that service of the employees of the management was governed by Memorandum of Settlement entered into between both parties on 04.06.1991. As per clause No. 1(11) CB (II) under the heading Basic Pay, the Senior Clerks have been redesignated as Assistant Accountants. As per clause No. 11 of the ScheduleII, following are the duties of Senior Clerks : "Supervisors (Senior Clerks) will be accountable and responsible for running of the department / section under them and their duties will involve looking after and checking the work of other Clerk or Clerks and SubStaff and will include :
(i) Verification of signatures and scrutiny as to the correctness of endorsements on any negotiable instruments.
(ii) Signing vouchers, cheques, drafts, mail transfers, pay orders, advices such as non payment advices, interbranch fate calling advices, bill schedules, demand notice, statements, certificates etc.
(iii) Checking all vouchers, advices, statements, cheques, drafts, etc. bills and books of accounts including current, stamps, franking machine balances.
For the purpose of efficient and effective functioning of DID 1399/16. 7/18 the section or department, the Supervisor shall ensure that all acts things and steps necessary therefor are taken by himself or by the Clerks placed under him and shall ensure that, whenever necessary:
(a) Reminders are sent on time and followed up;
(b) Pass sheets / books are filled up and issued promptly;
(c) Deposits are renewed on due dates or reminders sent to the parties;
(d) Standing instructions are complied with;
(e) Bills are accepted and due dates diarised / advised and followed up;
(f) Interest, commissions and service charges are collected;
(g) Proceeds of bills are received or remitted promptly;
(h) Confirmation of balances of accounts of the customers and its followup;
(i) Balances promptly taken, tallied and reported and followed up and also returns submitted;
(j) Advices and / or duplicate advises / summaries are issued / responded promptly whenever called for;
(k) Checking the proper recording of entries and all relevant particulars in regard to accounts opened under due authorisation."
It has been admitted by the claimant in cross examination that at the time of retirement he was working as Supervisor but the nature of duties mentioned in clause 11 shows DID 1399/16. 8/18 that his main job was clerical in nature and the secondary job was to be accountable for the work of other clerks and substaff. Hence, it is held that the claimant was a workman on the date of termination / retirement of his service.
Issue No. 1.
9. Ld. ARM argued that it is the mandate of Section 56 of the Banking Regulation Act, 1949 that the provisions of that Act shall apply to cooperative societies as they apply to banking companies. The management is a cooperative society doing business of banking in more than one States including Delhi. If Section 56 of that Act is applied with Section 2(a) (I) of the I.D. Act, the irresistible conclusion is that appropriate government in the present case should be Central Government and not the State Government. So, this Court has no jurisdiction to try the case because it is the Court appointed by the Central Government which can decide it. Section2(bb) of the Act creates its own corporate entity i.e. Multi State Banking Company and reference to B.R. Act, 1949 is for the limited purpose of identifying one kind of banking institutions it brings in. Thus, there is no question of such Multi State Banking Company referred to in the B.R. Act of being bodily lifted in the I.D. Act by legislative incorporation of the B.R. Act, 1949 and therefore, when the expression "Banking Company" was expanded in 1965 to include cooperative banks, DID 1399/16. 9/18 such cooperative banks also became banking companies under the BR Act and if any of these newly included banking companies operate in more than one State, then they also become multiState Banking Companies for the purpose of Section 2(bb) of the I.D. Act.
Ld. ARW replied that the point raised by ARM has been set at rest by Hon'ble Apex Court in Bharat Cooperative Bank (Mumbai) Ltd. Vs. Cooperative Bank Employees Union, 2007 II CLR 160.
10. In Bharat Cooperative Bank (Mumbai) Ltd. Vs. Co operative Bank Employees Union (supra), the question before Hon'ble Supreme Court was whether it is the Central Government or State Government in relation to a Multi State Cooperative Bank carrying on business in more than one State, for the purpose of Industrial Disputes Act, 1947. The Hon'ble Supreme Court held in following words that the legislation intended was not to bring within its ambit all the banks transacting the business of bank in India.....
"23. Moreover, Section 2(bb) has subsequently been amended from time to time by various amendments to include certain specified banks and institutions, which would otherwise not fall within the exhaustive definition of the "Banking DID 1399/16. 10/18 Company" in Section 2(bb) read with Section 5(c) and f(d) of the BR Act. It is plain that if the Parliament had intended an expansive interpretation of the original words, then there would have been no reason whatsoever to keep amending the definition from time to time. In our view, therefore, the language of Section 2(bb) clearly demonstrates the legislative intent not to bring within its ambit all the banks transacting the business of banking in India."
In view of above citation, it is held that this Court is very much competent to decide the case in hand. This issue is decided in favour of the claimant and against the management.
Issue No. 2.
11. Ld. ARM argued that the claimant had not given any demand notice to the management before filing the present case and hence there is no industrial dispute. Ld. ARW replied that after receipt of notice Ex. WW1/3 from the management on 01.06.10, the claimant had written a letter Ex. WW1/4 on 07.06.10 to the management that he should be retired after attaining the age of 60 years. The said letter is not less than a demand notice.
12. The management had delivered letter Ex. WW1/M3 dated 01.06.2010 to the claimant intimating that after attaining the DID 1399/16. 11/18 superannuation age of 58 years, he would be retiring on 01.08.2010. In response, the claimant had written a demand notice Ex. WW1/4 to the management on 07.06.10 that he should be retired from job only after attaining the age of 60 years. It has been admitted by the management in para No. 12 of written statement that claimant had sent a letter dated 07.06.10 to it requesting to look into the matter. The said letter is no less than demand notice. It was not considered sympathetically and that is why, the claimant was retired from job on 01.08.10 and he immediately filed the case in hand on 05.08.2010. So, there is no substance in the plea of the management that the claimant had not given demand notice to it before filing any statement of claim. This issue is decided in favour of the claimant and against the management.
Issue No. 513. Ld. ARW argued that the management had entered into settlement with the union of the employees on 09.01.1991. As per clause No. 33 of that agreement, the age of the employee of the bank was fixed as 60 years. The management again entered into agreement with the employees on 24.06.03 vide document / settlement Ex. WW1/M1 and on the strength of that agreement / document, the retirement age was reduced to 58 years. He DID 1399/16. 12/18 assailed Ex. WW1/M1 on the ground that copy of the same was not sent to the Labour Department in pursuance to Section 2(p) of the I.D. Act and Central Rule 58. He next submitted that the first agreement Ex. WW1/2 was signed by 08 officials of the union of the management and by two witnesses but Ex. WW1/M1 was signed by only General Secretary of the union. The management compelled General Secretary to sign Ex. WW1/M1 and due to this reason, the said document is not admissible.
Ld. ARM admitted that the agreement Ex. WW1/M1 was not sent to the Labour Department for perusal / registration, but the same was the case with the earlier agreement Ex. WW1/2 dated 09.01.1991. So, the claimant should either admit both agreements or he should reject both. He cannot be allowed to chose one favouring him. He next argued that the subsequent agreement Ex. WW1/M1 was executed between management and two unions i.e. Bombay Mercantile Cooperative Bank Employees Union and Bombay Mercantile Cooperative Bank Officer's Association. After that agreement, the management had issued circular Ex. WW1/M2 on 28.06.2003 intimating all the employees that retirement age had been fixed as 58 years. The claimant did not take action against that subsequent agreement and circular. He cannot be allowed to assail that agreement after elapse of 7 years.
DID 1399/16. 13/1814. As per Section 2(p), settlement includes a written agreement between employer and workmen arrived at otherwise than in the course of conciliation proceeding where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy thereof has been sent to (an officer authorised on this behalf by) the appropriate Government. As per Central Rule 58, the said agreement is required to be sent to the Labour Department. It is the admitted case of both parties that neither the first agreement nor the second one was sent to the Labour Department. The claimant is trying to take benefit of Ex. WW1/2 i.e. first agreement on the ground that second agreement i.e. Ex. WW1/M1 was not sent to the Labour Department / authority, but same is the condition of Ex. WW1/2 i.e. the first agreement was also not sent by the management to the Labour Department. Both agreements are on the same footing. The claimant should either admit both or reject both. He did not place on record any other agreement entered into between management and employees prior to 09.01.1991 in which there may be some mention of retirement age. So, his plea that agreement Ex. WW1/M1 cannot be act upon due to nonsending of the same to the Labour Department, is rejected.
The other ground of assailing agreement Ex.
WW1/M1 is that it has been signed by only one office bearer of the DID 1399/16. 14/18 union whereas the Ex.WW1/2 was signed by as many as 08 office bearers. It is correct that Ex. WW1/2 i.e. first agreement was signed by 08 office bearers of Bombay Mercantile Cooperative Bank Officer's Association. It was signed by two other witnesses also. It is also clear that Ex. WW1/M1 has been signed by a person namely, Mustafa Kadiani on behalf of Bombay Mercantile Cooperative Bank Employees Union. But the claimant did not place on record any document to prove that Mr. Mustafa Kadiani did not have any authority to sign the said agreement. Signing of an agreement by less number of persons does not suggest that the same is illegal / irregular. Moreover, the subsequent agreement was signed by representatives of two unions whereas the first agreement had been signed by representatives of only one union. It has been admitted by claimant in cross examination that Mr. Mustafa Kadiani was the General Secretary of the employees union and the agreement was signed by Mr. Mustafa Kadiani. He next admitted that he came to know 8 - 10 days after 24.06.03 i.e. after execution of subsequent agreement that the same was signed by Mustafa Kadiani. He deposed that the management had got signatures of Mustafa Kadiani, General Secretary forcibly. He admitted that he did not send any representation against Ex. WW1/M1 to the General Secretary Mustafa Kadiani. He orally stated that he had sent a representation to the Delhi union. He did DID 1399/16. 15/18 not place on record the said representation. He did not ask employees union to file the case against lowering of retirement age as 58 years from 60 years. It has been admitted by him that 254 officials apart from him had retired pursuant to circular Ex. WW1/M2. Those 254 employees did not make any representation to the management against retirement age as 58 years. The claimant had come to know in June 2003 itself that retirement age of the employees had been reduced to 58 years. Despite it, he did not give any representation to set aside the subsequent agreement. He first come into motion by writing letter Ex. WW1/5 to the management on 07.06.10 when the management had sent him a notice Ex. WW1/3 dated 01.06.10 to the effect that he was completing superannuation age of 58 years on 25.07.10 and that he would be retiring on 01.08.10. He did not explain why he was sitting idle. If Mr. Mustafa Kadiani had signed Ex. WW1/M1 under force, other 254 retired employees would have definitely raised voice against the management. Even Mustafa Kadiani would have agitated against the management. But they accepted the retirement age as 58 years meekly. The claimant did not produce Mr. Mustafa Kadiani in witness box to prove that the management had obtained his signatures on on Ex. WW1/M1 forcibly.
In view of above discussion, this issue is decided n DID 1399/16. 16/18 favour of the management and against the claimant holding that management had not terminated services of the claimant and rather he had retired on 01.08.10.
Issue No. 3 & 4.
15. Both these issues are interconnected and hence are being taken up together. Section 2A had come into force w.e.f. 15.09.10. The case in hand was filed on 05.08.10. So, on the date of filing of the case, Section 104(A) (as amended by Delhi) was in force since 22.08.2003. As per Section 104(A) the individual workman may, within 12 months from the date of communication to him of the order of discharge, dismissal, retrenchment or termination, apply in the Labour Court for adjudication of the dispute. In that Section words namely, discharge, dismissal, retrenchment and termination have been used. It has already been held in issue No. 5 that claimant had retired on 01.08.10. So, his case is not covered under dismissal, discharge, retrenchment or termination. So, both these issues are decided in favour of the management and against the claimant.
Issue No. 6.
16. Consequent to decision on issue Nos. 3, 4 & 5, it is held that claimant is not entitled to any relief. Statement of claim is DID 1399/16. 17/18 dismissed. Award is passed accordingly. Parties to bear their own costs.
17. The requisite number of copies of the award be sent to the Govt. of NCT of Delhi for its publication. File be consigned to Record Room.
Dictated to the Steno & announced (UMED SINGH GREWAL) in the open Court on 18.11.2016. POLCXVII/KKD, DELHI.
DID 1399/16. 18/18