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CASE NO.:

Appeal (civil) 2790 of 2006

PETITIONER:

Personal Manager,SBI &Anr

RESPONDENT:

Krishna Grameena Bank Employees Union & Anr

DATE OF JUDGMENT: 28/11/2007

BENCH:

Dr. ARIJIT PASAYAT & S.H. KAPADIA

JUDGMENT:

J U D G M E N T

CIVIL APPEAL NO. 2790 OF 2006

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division

Bench of the Karnataka High Court dismissing the writ appeal

filed by the appellant.

2. Background facts in a nutshell are as follows:

3. On 1.9.1987 employees of Regional Rural Banks (in short

the 'RRBs.') filed Writ Petition Nos. 7149-50 of 1982 and Writ

Petition No. 132 of 1984 under Article 32 of the Constitution of

India, 1950 (in short the 'Constitution') challenging salary

structure in these Banks. This court directed the issues to be

referred to a National Industrial Tribunal (in short the 'National

Tribunal'). On 26.11.1987 the National Tribunal was

constituted by the Government of India to consider the disputes

relating to pay, salary and allowances payable to the employees

of RRBs. On 10.4.1989 "Industry Level Fifth Bipartite

Settlement" was signed between 54 Banks and their

associations, wherein inter alia agreed that special allowances

for clerical staff would be payable to the employees of 54

(sponsor) Banks, and "Cashier in charge of cash" would be

entitled to special allowance of Rs.189 per month. On 9.6.1989

an agreement was entered into between the State Bank of India

and its federation, called the "Fifth Bipartite Settlement"

wherein revised functional allowance for workmen was agreed

to be paid and each "cashier in charge of cash" was to be paid

allowance of Rs.380/- per month. On 30.4.1990 the National

Tribunal passed an award directing that the officers and

employees of the RRBs. will be entitled to claim parity with their

counterparts in the sponsor bank in the matter of pay scale

with effect from 1.9.1987. On 16.1.1991 Government of India

constituted an Equation Committee pursuant to the

observations made in the Award wherein it was provided that

"allowances and benefits" which are provided in the Bipartite

settlement of the concerned sponsored bank may be extended to

the RRBs' employees. On 22.2.1991 Government of India

issued instructions to all sponsor banks and RRBs for

implementing NIT award and recommendation of the Pay

Equation Committee. On 31.7.1991, arose the starting point of

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controversy so far as the present dispute is concerned.

According to the appellants, on an erroneous reading of the

award and without appreciating the fact that there is no post of

"Joint Custodian of Keys" in the sponsor bank i.e. State Bank of

India, the RRBs. issued a circular stating that "Joint custodian

of Keys (junior/senior clerk )will be eligible for a cash allowance

of Rs.380/- per month. This was issued by the appellant No. 2.

Another RRB i.e. Nagarjuna Gramin Bank on 8.8.1991 which is

also sponsored by appellant No. 1 (SBI) issued a circular stating

that there is no comparable post of clerk or cashier holding keys

as Joint Custodian in SBI and as per Government of India and

as per Government of India's instructions, "cashier in charge"

holding keys will be entitled to allowance of Rs.189/- per month

and not Rs.380/- per month. The appellant No. 2 RRB also

issued similar circular clarifying that Joint Custodian allowance

shall be paid at the rate of Rs.189/- (as per Industry Level

Settlement) instead of Rs.380/- per month. The respondent-

Union filed writ petition before the High Court. That writ

petition No. 23469 of 1991 was filed praying for quashing

circular dated 21.10.991 issued by the appellant No. 2 on the

ground that Fifth Bipartite Settlement entered between SBI and

Staff Federation provided that said allowance was to be paid at

the rate of Rs.380/- per month as cash allowance and joint

custodian allowance is payable to the employees of sponsor

bank and there should be parity of allowance of the employees

of RRB as per the National Tribunal Award. By judgment dated

27.1.1992 the Patna High Court which was dealing with similar

issues granted liberty to Government and RRB to reduce the

said allowance. On 21.4.1992 NABARD issued a Circular to all

sponsor banks including SBI stating that of RRBs' special

allowance of only Rs.189/- shall be payable. This order of

NABARD was issued with the prior approval of the Government

of India. The writ petition filed by respondent was allowed by a

learned Single Judge of the Karnataka High Court. Challenge

was raised by the employees of another RRB i.e. Nagarjuna

Gramin Bank which was also sponsored by SBI before Andhra

Pradesh High Court. A Division Bench of the Andhra Pradesh

High Court held that employees are entitled to allowance at the

rate of Rs.189/- and not at the rate of Rs.380/- per month. The

order of learned Single Judge of the Karnataka High Court was

challenged before the Division Bench in Writ Appeal which as

noted above was dismissed.

4. Stand of the respondent on the other hand appears to be

that the appellants have relied on the alleged circular of

NABARD dated 21.4.1992 purportedly issued in exercise of

power under Section 38 of the NABARD Act, 1981. It is

submitted that the same cannot be treated as a decision by the

Government of India issued under Section 17(1)(ii) proviso of

the Act. It was further submitted that the circular was

inapplicable to RRB acting under sponsor banks covered by

industry level settlement and not bank level settlement as is

evident from a reading of the said circular. In case of appellant

no. 1 the power is exercisable by the Government of India under

Section 18 of the State Bank of India Act, 1985 and not the

NABARD Act. It is submitted that the appellants' stand that the

post of "Cashier in Charge" of cash has become redundant in

the sponsor bank has been contested by the respondent on the

ground that the so called redundancy took place much after the

6th Bipartite Settlement of 1995 whereas the offending circular

was issued on 21.10.1991. It is stated that the appellants'

stand that parity in pay between the employees of the sponsor

bank and the RRB according to the NABARD in case of post of

similar category is not correct on the date the bank level

settlement was made. Post of cashier in charge of the sponsored

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bank and in the appellant No.1 in fact existed and there existed

a basis for parity. The re-designation of the post due to change

of job profile subsequent to the circular cannot be the basis of

special/functional allowance since the original determination of

such allowance was made on the basis of the existing job profile

which in the case of appellant No. 2 remains unaltered and the

members of the respondent No. 1 continue to discharge some

function up to date.

5. It is to be noted that NABARD was not a party in the writ

petition. There is no stand taken by the respondent that the

NABARD did not have the consent of the Government of India.

It is accepted that NABARD in its letter dated 21.4.1992 wrote

to all RRBs as follows:

"Please refer to instructions contained in

Finance Ministry (Banking Division) letter No.

11-3/90 RRB(I) dated 22nd February, 1991 on

the captioned subject. In this connection,

attention is invited to para 14 and also item

8(ii)(b) of Annexure VI thereof. It has been

reported that different banks are paying

different rates of allowance to the cashiers-in-

charge of cash in RRBs. In RRBs. Clerks-in-

charge of cash shall be entitled to allowance

provided to cashier-in-charge of cash in pay

offices/branches in the industry level bipartite

settlement i.e. a special allowance of Rs.164/-

per month only from Ist September, 1987 as

provided in the IV Industry level bipartite

settlement. This allowance will be payable to

the RRB employees concerned from 1st

September, 1987 i.e. the date of implementation

of the Award of NIT. The excess allowance paid,

if any, may be recovered from the employee

concerned excepting where specific court orders

are in operation. These instructions shall be

uniformally applicable to all RRBs. throughout

the country.

This order is issued with the prior approval

of the Ministry of Finance (Banking Division),

Government of India, New Delhi."

6. It is also to be noted that the Central Government is not

objecting to Rs.189/- though it is the stand of the respondent

that there is functional similarity. If that logic should apply

then that allowance of Rs.189/- shall have to go. The Staff

Circular No. 11 dated 31.7.1991 stipulated as follows:

(i) "Senior among Jr. Clerk or Sr. Clerk

wherever available will act as Joint

Custodian of safe keys alongwith Branch

Manager and will hold one set of safe

keys.

(iv) When an employee with custody of keys

also officiates as Branch Manager, he will

be paid only the officiating allowance,

which is higher than the cash allowance

during the period he officiates as Branch

Manager, the employee is eligible for only

one type of allowance at a time.

(v) (iia) Joint Custodian of keys (Junior

Clerk/Senior Clerk) of the branch will be

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eligible for a cash allowance of Rs.380/-

p.m."

7. It is seen that the National Tribunal decided on the basis

of parity. It, however, does record any finding about the

functional similarity. It did not go into the question post wise.

It purportedly adopted the parity principle and not 'equal pay

for equal work' concept. National Tribunal's direction was that

the details were to be adopted by the Equation Committee.

8. In Kshetriya Kisan Gramin Bank vs. D.B. Sharma and

Ors.(2001(1) SCC 353) it was observed in paras 5 & 7 as

follows:

"In view of the rival submissions at the Bar, the

first question that arises for our consideration is

whether the Tribunal had really accepted the

plea of principle of Equal pay for Equal work or

had rejected the same and instead, had applied

the principle of parity. We have gone through

the award passed by Justice Obul Reddi. The

dispute which had been referred to the tribunal

for its decision was the dispute relating to pay,

salary, allowances and other benefits payable to

the employees of the Regional Rural Banks in

terms of the pleading of the parties in the Writ

Petition (Civil) Nos. 7149-50/82 and 132 of

1984, filed in the Supreme Court of India. The

first two writ petitions had been filed by the All

India Grameena Bank Workers Organisation

and the third one had been filed by the All India

Regional Rural Bank Employees Association. It

is undoubtedly true that in the writ petition

prayer had been made for issuance of a

mandamus to fix the emoluments of the

Regional Rural Bank employees in conformity

with the laid down judicial maxims of 'equal pay

for equal work' and 'industry-cum region

formula' and bring about parity in emoluments

between the employees of Regional Rural Banks

Inter se and employees of the Nationalised

Commercial Banks. The Tribunal on

consideration of the stand of the parties and

various statistics given by the Banks, came to a

conclusion that there would be no serious

economic repercussions, if the parity in the

matter of pay-scales and allowances, is given to

the Regional Rural Banks employees. It also

came to the conclusion that there cannot be any

comparison between the District Central Co-

operative Banks and Regional Rural Banks

inasmuch as Co-operatives are a State subject

and the said banks are run by the State

Governments; whereas Regional Rural Banks

are run by the Central Government under an

Act of Parliament. It also found that the work

carried out by Regional Rural Bank employees

and Nationalised commercial bank employees is

the same, both in quality and quantity. It

further found that there are absolutely no

grounds whatsoever to deny parity between the

employees of the rural branches of the

commercial banks and those of Regional Rural

Banks, applying the yardstick of cost of living

and volume of business. It also found that the

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Regional Rural Banks and the rural branches of

the commercial banks perform the identical

functions and duties. The tribunal came to hold

on the basis of evidence on record that the

employees of Regional Rural Banks form a

separate class under a separate statute and so

are the employees of the commercial banks. In

paragraph 4.422, the tribunal held:

4.422. I further observed in para

4.149 that "I must make it very clear

in this connection and let there be no

ambiguity about it, that my finding

that the RRB employees form a

separate class and that, therefore,

they are not discriminated against so

as to attract the doctrine of "equal

pay for equal work" has to be

disengaged and de-linked from the

question of their claim for parity in

their pay structure with the sponsor

bank employees in corresponding and

comparable posts within the

framework of the 2nd proviso on the

facts and circumstances of the case.

Shred of legal nuances, their claims

have to be examined on the principles

of justice and equity".

Ultimately, the tribunal held that the officers

and employees of the Regional Rural Banks will

be entitled to claim parity with the officers and

other employees of the sponsor banks in the

matter of pay scales, allowances and other

benefits. In paragraph 4.428, the tribunal held

as follows:

4.428. So far as the equation of posts

and the consequent fixation of the

new scales of pay allowances and

other benefits for Officers and other

employees of the RRBs on par with

the Officers and other employees of

comparable level in corresponding

posts in sponsor banks and their

fitment into the new scales of pay as

are applicable to Officers of sponsor

banks in corresponding posts of

comparable level, it is a matter which

has to be decided by the Central

Government in consultation with

such authorities as it may consider

necessary. This will also include the

pay scales, benefits, other allowances

and fitment of sub-staff of the RRBs

with the sub-staff of sponsor banks.

This Award is accordingly passed and

it shall cover all existing RRBs. The

Award shall be given effect to from

01st day of September, 1987.

In view of the aforesaid conclusions of the tribunal on

the basis of evidence placed before it, the conclusion

is irresistible that the tribunal never applied the

principle of 'equal pay for equal work' and on the

other hand was of the view that the employees of the

Regional Rural Banks will be entitled to claim parity

with the officers and other employees of the sponsor

banks in the matter of pay scales, allowances and

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other benefits and for determining the parity, it left

the matter to be decided by the Central Government

in consultation with such authorities as it may

consider necessary. We are, therefore, persuaded to

accept the submissions of Mr. Ramachandran,

appearing for the appellant that while resolving the

dispute of the employees of the Regional Rural

Banks, the tribunal did no apply the so-called

principle of 'equal pay for equal work' and on the

other hand applied the principle of parity with the

officers of the respective sponsor banks."

9. No where has the National Tribunal said anything about

the functional similarity and as noted above they also did not

examine the question post wise. The Equation Committee does

not say that the two posts are equal because of earlier position.

In para 6 of Kshetriya Kisan Gramin Bank's case (supra) stress

was laid on comparable level and status. In SBI there is no

post of Joint Custodian. In the State Bank of India and the

sponsored bank there are two posts as cash officer and clerk

cum cashier who perform distinct functions. The custody of

the cash is held by the cash officer and as and when cashiers

perform the additional function of cash officer they are paid an

allowance of Rs.380/- which is called officiating allowance and

not the keys allowance. Significantly in RRB the cash in charge

is a workman, while in the sponsor bank he is an officer. In

view of what has been stated above, this appeal is bound to

succeed. It is, however, directed that no amount shall be

recovered from the period from 1.1.1991 to 21.10.1991. The

amounts already paid shall not be recovered if not already done.

There shall be no order as to costs.

10. It may be noted that so far as delay in seeking the

reference is concerned, no formula of universal application can

be laid down. It would depend on facts of each individual case.

11. However, certain observations made by this Court need to

be noted. In Nedungadi Bank Ltd. v. K.P. Madhavankutty and

Ors. (2000 (2) SCC 455) it was noted at paragraph 6 as follows:

"6. Law does not prescribe any time-limit for

the appropriate Government to exercise its

powers under Section 10 of the Act. It is not

that this power can be exercised at any point of

time and to revive matters which had since heel)

settled. Power is to be exercised reasonably and

in a rational manner. There appears to us to be

no rational basis on which the Central

Government has exercised powers in this case

after a lapse of about seven years of the order

dismissing the respondent from service. At the

time reference was made no industrial dispute

existed or could be even said to have been

apprehended. A dispute which is stale could not

be the subject-matter of reference under Section

10 of the Act. As to when a dispute can be said

to be stale would depend on the facts and

circumstances of each case. When the matter

has become final, it appears to us to be rather

incongruous that the reference be made under

Section 10 of the Act in the circumstances like

the present one. In fact it could be said that

there was no dispute pending at the time when

the reference in question was made. The only

ground advanced by the respondent was that

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two other employees who were dismissed from

service were reinstated. Under what

circumstances they were dismissed and

subsequently reinstated is nowhere mentioned.

Demand raised by the respondent for raising an

industrial dispute was ex-facie bad and

incompetent."

12. In S.M. Nilajkar and Ors. v. Telecom District Manager,

Karnataka (2003 (4) SCC 27) the position was reiterated as

follows: (at para 17)

"17. It was submitted on behalf of the

respondent that on account of delay in raising

the dispute by the appellants the High Court

was justified in denying relief to the appellants.

We cannot agree. It is true, as held in M/s.

Shalimar Works Ltd. v. Their Workmen (supra)

(AIR 1959 SC 1217), that merely because the

Industrial Disputes Act does not provide for a

limitation for raising the dispute it does not

mean that the dispute can be raised at any time

and without regard to the delay and reasons

therefor. There is no limitation prescribed for

reference of disputes to an industrial tribunal,

even so it is only reasonable that the disputes

should be referred as soon as possible after they

have arisen and after conciliation proceedings

have failed particularly so when disputes relate

to discharge of workmen wholesale. A delay of 4

years in raising the dispute after even

reemployment of the most of the old workmen

was held to be fatal in M/s. Shalimar Works

Limited v. Their Workmen (supra) (AIR 1959 SC

1217), In Nedungadi Bank Ltd. v. K.P.

Madhavankutty and others (supra) AIR 2000 SC

839, a delay of 7 years was held to be fatal and

disentitled to workmen to any relief. In Ratan

Chandra Sammanta and others v. Union of

India and others (supra) (1993 AIR SCW 2214,

it was held that a casual labourer retrenched by

the employer deprives himself of remedy

available in law by delay itself, lapse of time

results in losing the remedy and the right as

well. The delay would certainly be fatal if it has

resulted in material evidence relevant to

adjudication being lost and rendered not

available. However, we do not think that the

delay in the case at hand has been so culpable

as to disentitle the appellants for any relief.

Although the High Court has opined that there

was a delay of 7 to 9 years in raising the dispute

before the Tribunal but we find the High Court

factually not correct. The employment of the

appellants was terminated sometime in 1985-86

or 1986-87. Pursuant to the judgment in Daily

Rated Casual Employees Under P&T

Department v. Union of India (supra) (AIR 1987

SC 2342), the department was formulating a

scheme to accommodate casual labourers and

the appellants were justified in awaiting the

outcome thereof. On 16-1-1990 they were

refused to be accommodated in the scheme. On

28-12-1990 they initiated the proceedings

under the Industrial Disputes Act followed by

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conciliation proceedings and then the dispute

was referred to the Industrial Tribunal cum-

Labour Court. We do not think that the

appellants deserve to be non suited on the

ground of delay."

13. Appeal is allowed with no order as to costs.