Heard both sides.
2. The petitioner in both the Writ Petitions are the management of Dharmapuri District Central Cooperative Bank, Dharmapuri. In the first Writ Petition, the challenge is to the award passed by the 1st respondent, Industrial Tribunal in I.D.No.48 of 2002 dated 6.5.2004. The second Writ Petition challenges the Notice issued by the Labour Officer, Krishnagiri asking the management to submit explanation on the complaint given by the workers Union regarding the non-implementation of the Award in I.D.No.48 of 2002 dated 5.5.2004.
2. The first Writ Petition was admitted on 15.10.2004. In the stay application, only Notice was ordered. In the second Writ Petition, notice of motion was ordered returnable in two weeks and pending that Writ Petition, an interim stay was granted. However, the interim stay granted on 11.9.2006 was not extended thereafter.
4. The dispute arose under the following circumstances:
The management of the petitioner bank gave a notice under
section 9-A of the Industrial Disputes Act, 1947 (for short 'Act') on 3.1.2002. By the notice, the management informed the workmen that originally, the pay of the workmen was fixed by G.O.Ms.No.144, Cooperation Department dated 6.7.2000. Subsequently, clarification was obtained from the Registrar and therefore, in accordance with the clarifications, the salaries of the workmen, which were fixed according to the earlier G.O., were revised. Once the revised orders were issued, the amount paid in excess will have to be recovered from their salaries.
5. The workmen objected to the said 9-A notice and raised an industrial dispute before the Government Labour Officer at Krishnagiri by their letter dated 17.1.2002. Notice was issued to the petitioner bank. The petitioner bank gave a reply dated 31.1.2002. Since the Conciliation Officer could not bring about any mediation, he sent a Failure Report dated 2.5.2002 to the State Government. The State Government in exercise of the power vested under
section 10(1) of the Industrial Disputes Act issued G.O.(D) No.897, Labour and Employment Department, dated 28.10.2002 and referred the issue for adjudication. In that order of reference, the Industrial Tribunal was directed to adjudicate the issue relating to the 9-A Notice issued by the bank and as to whether the bank was justified in recovering the amount and whether the demand of the workmen for payment of arrears from 1.7.1994 to 31.8.2001 was justified.
6. The said reference was taken on file by the Industrial Tribunal as I.D.No.48 of 2002. Notice was issued to both the parties. The union to which the workmen belonged filed a claim statement dated 28.2.2003 to which the petitioner bank filed a counter statement dated 26.5.2003. The union filed a rejoinder dated 3.9.2003 to which the petitioner bank filed a further reply dated 'nil'.
7. Before the Industrial Tribunal, on behalf of the workmen, 2 documents were filed and marked by consent, namely Ex.W.1 and W.2. On the side of the management, 11 documents were filed and they were marked as Ex.M.1 to M.11. Both parties did not adduce any oral evidence.
8. The Tribunal on an appreciation of the materials placed before it came to the conclusion that as per Ex.M.6, dated 14.2.2002, which is a Memorandum of Understanding between the workmen and the management, the management had agreed not to deduct wages until a clarification is given by the department. Though the management contended that they have strictly proceeded on the basis of the subsequent orders issued by the State Government vide G.O.Ms.No.203, Cooperation, Food and Consumer Protection Department dated 21.5.2001, the contention of the workmen was that the said G.O did not authorise any recovery from the salaries of the workmen.
9. The workmen also placed before the Tribunal a copy of G.O.(D) No.70, Cooperation, Food and Consumer Protection Department dated 5.3.2004, which was marked as Ex.W.2. In the said Government Order in respect of Thiruchirapalli District Central Cooperative Bank, where a similar pay fixation was made by that management subsequently, when they attempted to recover amounts as alleged excess payments, basing upon the workers grievance, the Government had issued the said G.O.
10. In paragraph 4 of Ex.W.2, it is stated as follows:
"4. The Government have examined the proposal of the Registrar of Cooperative Societies. The action of the Tiruchirapalli District Central Cooperative Bank in having fixed the pay of the selection grade employees in the higher stage of the selection grade pay scale ordered in the Government Order first read above is ratified. The Government also direct that the Tiruchirappalli District Central Cooperative Bank be permitted to protect the pay already drawn by the 159 employees who have been sanctioned selection grade and moved to selection pay scales. The Bank is also permitted to sanction selection grade to 137 employees by protecting the pay and increments already drawn in the ordinary scale and to revise the pay w.e.f 1.7.99."
11. Therefore, the Tribunal came to the conclusion that when a similar relief was given by the Government in respect of Tiruchirapalli District Central Cooperative Bank, there is no reason why the workmen of the Dharmapuri District Central Cooperative Bank (petitioner bank) should be treated differently. In that view of the matter, the Tribunal held that withholding of payments by the issuance of Notice under
Section 9-A of the Act was not justified and that the demand of the workmen for payment of arrears of salary from 1.7.1994 to 31.8.2001 was justified by its Award dated 6.5.2004. It is this Award which is under challenge in the first Writ Petition.
12. Mr.M.R.Raghavan, learned counsel for the petitioner bank contended that once it comes to the notice of the bank that there was a wrong fixation, a Memorandum of Understanding was arrived at. Thereafter, clarification was sought for. The Government had clarified by G.O.Ms.203, Cooperation, Food and Consumer Protection Department dated 21.5.2001. Though the said G.O did not advert to any recovery, the necessary corollary of a wrong fixation is recovery of amounts paid in excess. For doing it, the Registrar had given a direction. He also submitted that under the provisions of the Tamil Nadu Cooperative Societies Act, 1983, more particularly under section 181, the Registrar of the Cooperative Society has power to grant directions in public interest and the Society was bound to comply with the said direction. Therefore, the Tribunal's award was erroneous. Secondly, he contended that the Tribunal had not given any reason as to how that the pay fixation done by the bank was erroneous and contrary to the Government's Order. Therefore, the impugned Award suffers from non-application of mind.
13. Per contra, Mr.Ethirajulu, learned counsel for the workmen submitted that the pay fixation was done in accordance with the earlier G.O. When there was a recovery sought to be made, the union objected to the same. They also pointed out the discrimination between the one District Cooperative Bank and the other. Therefore, the Tribunal's award was fully justified. The union had also filed a counter affidavit dated 2.7.2005 justifying the impugned award.
14. With reference to the second Writ Petition, the grievance of the petitioner bank was that there was no scope for prosecuting the management, when they have pursued their remedy challenging the award before this Court. Therefore, the Notice issued by the Labour Officer was illegal.
15. However, it must be noted that the Notice issued by the Labour Officer dated 22.8.2006 impugned in W.P.No.31944 of 2006 cannot be interdicted by this Court. First of all under
Section 29 of the Industrial Disputes Act, without the sanction of the State Government under
Section 34 of the Industrial Disputes Act, no prosecution can be launched before a criminal court. Secondly, it is only a Notice asking the petitioner bank to explain as to why he should not recommend the prosecution of the bank. The Labour Officer himself is not a prosecuting authority and he can only get the comments on the trade union's complaint for non-implementation of the award. It must be also noted that though the management had challenged the award, they have failed to get any interim order from this Court. Therefore, there was no impediment for launching a prosecution in terms of
Section 29 of the Industrial Disputes Act.
16. However, in the present case, the Labour Officer can at the maximum forward his recommendation. But, ultimately, it is for the State Government to sanction for prosecution. Even assuming such a prosecution was sanctioned, it is always open to the management of the Bank to submit their defence before the appropriate criminal court. At the stage of notice calling for remarks, no Writ Petition can be entertained. Hence, Writ Petition No.31944 of 2006 is misconceived and it will stand dismissed.
17. Insofar as W.P.No.29973 of 2004 is concerned, the Tribunal, though dealt with the justifiability of Section 9-A Notice and the action of the management in withholding the amounts, also relied heavily upon Ex.W.2, which is a ratification order given by the State Government in respect of a similarly placed bank, namely, Tiruchirapalli Central Cooperative Bank. Therefore, when an adjudication is done in terms of the Industrial Disputes Act, the Tribunal apart from the fact that whether the 9-A Notice is valid or not, can also take note of the similar issue dealt with by the other bank on the concept of 'region-cum-industry' principle. Therefore, when reliance was placed before the Tribunal on Ex.W.2 for granting relief to the workmen, no exception can be taken by this Court.
18. The Supreme Court in Tata Chemicals Ltd. v. The workmen reported in AIR 1978 SC 828 held that in the matter of industrial adjudication, the region-cum-industry principle can be legitimately applied. The Supreme Court in paragraph 21 observed as follows:
"21. Re. Question No.5: This takes us to the determination of the last question. The decision of this Court in Bengal Chemical and Pharmaceutical works Ltd. v. Its workmen (1969)1 Lab. LJ 751 at p.758 (AIR 1969 SC 360 at p.366) no doubt shows that in fixing wages and Dearness Allowance,t he Industry-cum-Region formula is inter alia to be kept in view. At the same time, it has to be borne in mind that there can be no comparison between a small struggling concern and a large flourishing unit. It follows, therefore, that when there is a large disparity between the two concerns engaged in the same line of business in a region with which the Industrial Court is dealing it, is not safe to fix the same wage structure for the large flourishing concern of long standing as obtains in a small struggling concern (see French Motor Car Co.Ltd. v. Their workmen (1962) 2 Lab LJ 744): (AIR 1963 SC 1327). It cannot also be lost sight of that with the march of time, the narrow concept of Industry-cum-Region is fact changing and too much importance cannot be attached to region. The modern trends in industrial law seem to lay greater accent on the similarity of industry rather than on the region. It was observed by this Court in Workmen of New Egerton Woolen Mills and New Egerton Woolen Mills (1969) 2 Lab LJ 782 (SC) that where there are no comparable concerns in the same industry in the region, the Tribunal can look to concerns in other industries in the region for comparison but in that case such concerns should be as similar as possible and not disproportionately large or absolutely dissimilar. On the parity of reasoning, it is reasonable to conclude that where there are no comparable concerns engaged in similar industry in the region, it is permissible for the Industrial Tribunal or Court to look to such similar industries or industries as nearly similar as possible in adjoining or other region in the State having similar economic conditions." (Emphasis added) It is noted that of late, more than the region, the emphasis on the industry has been noted by the Supreme Court. The Tiruchirapalli District Central Cooperative Bank is identical in all respects with the petitioner bank.
19. In the present case, Ex.W.2 is a classic example where in respect of one District Central Cooperative Bank the State Government had ratified the pay fixation and the Tribunal had correctly found that the same relief should be given to the workmen of the petitioner management.
20. The second contention, namely, the management is bound by the circular issued by the Registrar of the Cooperative Societies also came to be considered by the Supreme Court vide its judgment in Central Cooperative Bank Ltd. vs. Addl. Industrial Tribunal reported in AIR 1970 SC 245. In that case, the Supreme Court held that the Tribunal has power to adjudicate the demands of the workmen of a Cooperative Bank. In case where the workmen's demands are justified, the Tribunal can decide the issue untrammeled by any circular or bye-laws of a Cooperative Society. It was also held that the bye-laws of a Cooperative Society are merely in the nature of contract and the Tribunal's power to adjudicate the demands of workmen are not trapped by such circulars. Hence, the contentions of the management based on the Circular of the Registrar cannot be countenanced by this Court. Therefore, W.P.No.29973 of 2004 also stands dismissed.
21. In the result, both the Writ Petitions stand dismissed. However, there will be no order as to costs. The connected Miscellaneous Petition stands closed.
20.11.2009 Index:Yes Internet:Yes ajr To
1. The Presiding Officer Industrial Tribunal Chennai 104
2. The Labour Officer Krishnagiri K.CHANDRU,J ajr W.P.Nos.29973 of 2004 and 31944 of 2006 20.11.2009