Full Judgment Text
1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2328 OF 2021
[@ SPECIAL LEAVE PETITION (C) NO. 11668 OF 2016]
BANK EMPLOYEES UNION Appellant (s)
VERSUS
RAJARSHI SHAHU GOVT. SERVANTS
CO-OPERATIVE BANK LTD., KOLHAPUR Respondent(s)
J U D G M E N T
R.F.NARIMAN, J.
1. Leave granted.
2. The short question that arises in this appeal is
as to whether the appellant – Registered Trade Union
- had locus to prefer an application to modify a
standing order that applies to the employees of the
respondent under Section 38(2) of The Maharashtra
Industrial Relations Act, 1946. The brief facts
necessary in order to dispose of this appeal are as
follows :-
The original standing order with which we are
concerned, and which stated the age of retirement of
the employees of the bank, reads as follows :-
“22(7) Every employee shall retire
from service on attaining the age of
Signature Not Verified
Digitally signed by
Jayant Kumar Arora
Date: 2021.07.07
16:10:21 IST
Reason:
55 years, Extension not exceeding one
year at a time or three years in all
may be given at the discretion of the
president.”
2
3. By two Agreements dated 11.01.2004 and 21.02.2010
which were settlements under Section 18(1) of the
Industrial Disputes Act entered into between the
respondent and its employees, it was agreed vide
Clause 16 of the 2004 settlement and Clause 15 of the
2010 settlement that the retirement age would now be
58 years. A reference was made under Section 73A of
The Bombay Industrial Relations Act (as it was then
styled) to the Industrial Court, which then made an
award in terms of the two settlements entered into.
This award was dated 10.03.2010. However, when it
was pointed out that formalities under the
Maharashtra Industrial Relations Act in modifying the
standing order 22(7) needed to be gone through in
order to implement the two settlements which
culminated in an award, the appellant – Registered
Union - filed an application on behalf of the
employees dated 26.04.2011 under Section 38(2) of the
said Act. Armed with the consent letter from various
other unions dated 04.09.2012, the application was
heard by the Additional Labour Commissioner. The
Additional Labour Commissioner, vide his order dated
25.10.2012, recorded as follows :-
“As the employees of the said Bank
are also employed in other different
3
local areas of viz. Tasgaon, Kavathe
Mahankal, Khanapur, Atpadi, Jath,
Shirala, Walwa, Miraj, Palus,
Kadegaon talukas and they are
represented by Kolhapur District Bank
Employees Union, Kolhapur which is
the representative and approved union
for Banking Industry for the
abovesaid local areas, the said
union’s views were obtained in
accordance with the provisions of
sec. 39 (1) of the Bombay Relations
Act, 1946. The said union by their
letter dated 04/09/2012 conveyed that
they have no objection in the matter
of settlement of alteration to the
said Standing Order.
In accordance with the provisions of
section 39 (1) of the Act, the
management of the said Bank was
requested to file their say in
respect of the proposed alteration.
The Bank by their communication dt.
19/03/2012 communicated their various
objections objecting the union’s
proposed alteration, but the
management of the Bank could not
refute the fact that they have made
two settlements dated 11/01/2004 and
21/02/2010 wherein the management
Bank has agreed to alter the
retirement age of their employees
from 55 to 58.
As both the parties i.e. the
employees through their
4
representative unions, and also the
management of the said Bank have
already mutually made the agreements
to effect the change in retirement
age, I find no difficulty to make the
alteration to the Standing Order
clause No. 22(7) which will read as
under :-
Standing Order No. 22 (7) – Every
employee shall retire from service on
attaining the age of 58 years .
Extension not exceeding one year at a
time or three years in all may be
given at the discretion of the
President. ”
4. However, an appeal was filed by the Bank in
November 2012 against the said order, in which
essentially one point was taken up, which was that
under Section 38(2) of the Maharashtra Industrial
Relations Act, only an employee, as defined under the
said Act, could apply to the Commissioner of Labour
for an alteration of a standing order and the
Registered Union, being separately defined, would
therefore have no locus to do the same. This appeal
was allowed by the Industrial Court, on a conspectus
of the provisions of the said Act, that the appellant
Union would have no locus to approach the
Commissioner of Labour under Section 38(2) of the
Maharashtra Industrial Relations Act, as only an
5
employee defined under the said Act would be allowed
to do so. In addition, the Industrial Court, being
troubled about the fact that, by its order, the bank
would be allowed to resile from the two settlements
entered into, the court’s conscience spoke out
thus :-
“ 10) No doubt, the Appellant Bank had
executed an Agreement with the Opponent
Union and in the said Agreement, it was
decided to change the age of retirement
from 55 years to 58 years. But, the
Appellant Bank has made change in its
Standing Orders by moving an
application under Section 38(2) of The
Bombay Industrial Relations Act, 1946.
This act of the Appellant Bank shows
the attitude of the Bank towards its
employees. On the contrary, it was for
the Appellant Bank to become a model
employer by moving an application under
Section 38(2) of the said Act for
change in the age of retirement of its
employees from 55 to 58 years and the
same is not done. Undisputedly, the
Agreement states about the change in
the age of retirement that does not
mean that the law has given right to
the Union to file an application under
Section 38(2) of The Bombay Industrial
Relations Act, 1946.”
5. From this order, a writ petition was preferred by
the appellant. By the impugned Judgment dated
6
18.12.2014, after an exhaustive survey of the said
Act, it was found that the Industrial Court’s order
could not be interfered with, and, as a result, the
writ petition was dismissed.
6. Mr. Colin Gonsalves, learned senior counsel
appearing on behalf of the appellant, has taken us
through the provisions of the Act in copious detail
and has argued that on merits, his client would
certainly have locus, particularly given Section 27A
of the said Act, which has not been viewed by the
impugned Judgment in its correct perspective. In any
event, he added that it would be preposterous to
allow a party to a settlement, who, in fact, ratifies
the aforesaid settlement, to resile therefrom at a
stage of Ministerial implementation. He, therefore,
submitted that the appeal made against the learned
Additional Labour Commissioner’s order to the
Industrial Tribunal ought to have been dismissed on
the ground that since either the employer or the
employee, or both, could have gone to the
Commissioner of Labour to implement the two
settlements entered into, it would not lie in the
mouth of the employer to now turn around and take up
a technical plea of locus when the employer itself
could and should have approached the Labour
Commissioner under Section 38 to implement the two
7
settlements solemnly arrived at between the parties.
7. Sh. Vinay Navare, learned senior counsel
appearing on behalf of the Bank, supported the
Judgment of the Bombay High Court and took us in
copious detail through the provisions of the Act and
the standing orders. According to him, once it is
seen that the definition of ‘Employee’ and
“representative Union” is different, and once it is
also seen that under various other provisions of the
Act, more particularly Section 42, an ‘employee’ and
a ‘representative union’ have both been referred to
separately, as opposed to Section 38 which speaks
only of an ‘employee’, obviously a representative
union would have no locus to move an application
under Section 38, and the Judgment under appeal ought
not to be disturbed at all. He, however, makes a
submission that in case this Court were not to accept
his submission, the matter could be sent back to the
Commissioner of Labour for a reconsideration on
merits after adding one or more employees, so as to
take care of the technical objection taken.
8. After hearing both the learned senior counsel
appearing for the parties at length, we do not
propose to disturb the impugned Judgment on merits.
8
Having regard to the facts of this case, it is clear
that the original standing order which mandated 55
years as the age of retirement, was changed by
consent of both employer and employees, to 58 years,
not just once, but twice, by means of Settlements of
2004 and 2010, solemnly entered into under Section
18(1) of the Industrial Disputes Act. Not only this,
these settlements were also sanctified by an award of
th
the Industrial Court dated 10 March, 2010.
Ultimately, as correctly argued by Mr. Gonsalves, the
Ministerial duty of implementing the settlement was
on both the employer and the employees. It so
happened that the appellant moved an application
before the Commissioner of Labour. The said
application could and should have been joined in by
the employer, and in this backdrop, it would be clear
that any technical objection as to a registered union
having no locus to file an application under Section
38(2) of the said Act, cannot be countenanced. We,
therefore, set aside the order that has been passed
by the Industrial Court, which was only based on the
locus standi of the appellant, and hold that the
Industrial Court ought to have given some teeth to
Paragraph 10 of its own Judgment and held that the
very appeal which was filed before it be dismissed
for the very good reason that the bank should not be
allowed at the stage of implementation of two
9
settlements (culminating in an award) solemnly
entered into between itself and its employees, to now
turn around and question the locus standi of the
appellant. On this narrow ground, therefore, this
appeal is allowed and the Judgment of the Industrial
th
Court dated 14 March, 2013 and, consequently, the
judgment of the High Court is set aside. We
reiterate that we are not, in any manner, disturbing
the High Court Judgment on merits, leaving the
question of law decided by it open. All consequential
benefits, as a result of this Judgment, to the
employees of the respondent, be given within a period
of six months from today.
Pending interlocutory application(s), if any,
is/are disposed of.
.......................J.
[ ROHINTON FALI NARIMAN ]
.......................J.
[ K.M. JOSEPH ]
.......................J.
[ B. R. GAVAI ]
New Delhi;
JULY 06, 2021.
10
ITEM NO.10 Court 2 (Video Conferencing) SECTION IX
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Petition(s) for Special Leave to Appeal (C) No(s). 11668/2016
(Arising out of impugned final judgment and order dated 18-12-2014
in WP No. 6558/2013 passed by the High Court Of Judicature At
Bombay)
BANK EMPLOYEES UNION Petitioner(s)
VERSUS
RAJARSHI SHAHU GOVT. SERVANTS CO-OPERATIVE
BANK LTD., KOLHAPUR Respondent(s)
Date : 06-07-2021 This petition was called on for hearing today.
CORAM : HON'BLE MR. JUSTICE ROHINTON FALI NARIMAN
HON'BLE MR. JUSTICE K.M. JOSEPH
HON'BLE MR. JUSTICE B.R. GAVAI
For Petitioner(s) Mr. Colin Gonsalves, Sr. Adv.
Ms. Jane Cox, Adv.
Ms. Aparna Bhat, AOR
Ms. Karishma Maria, Adv.
For Respondent(s) Mr. Vinay Navare, Sr. Adv.
Ms. Gwen Karthika, Adv.
Ms. Abha R. Sharma, AOR
UPON hearing the counsel the Court made the following
O R D E R
Leave granted.
The appeal is allowed in terms of the signed reportable
Judgment.
Pending interlocutory application(s), if any, is/are disposed
of.
(JAYANT KUMAR ARORA) (NISHA TRIPATHI)
COURT MASTER BRANCH OFFICER
(Signed reportable Judgment is placed on the file)
11