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CASE NO.: Appeal (civil) 8569  of  1997

PETITIONER: BANK OF INDIA

       Vs.

RESPONDENT: SECRETARY, BANK OF INDIA STAFF UNION & ANR.

DATE OF JUDGMENT:       09/04/2001

BENCH: S. Rajendra Babu & Shivaraj V. Patil

JUDGMENT:

RAJENDRA BABU, J. : L...I...T.......T.......T.......T.......T.......T.......T..J

   This  appeal  is  filed  against an award  made  by  the Industrial Tribunal, Kanpur on a reference made to it on the following question:

   Whether  the action of the management of Bank of  India in  not  paying  special allowance to the  staff  posted  at clearing  house of Lucknow, Agra, Unnao, Varanasi and Kanpur as  per  list enclosed is justified?  If not to what  relief were the workmen entitled?

   The  Tribunal  held  that   the  concerned  workmen  are entitled  for special assistant allowance for the number  of days  they have worked at various collection centres and the same  shall  be  payable for the number of  days  they  have actually worked with effect from the date of reference.  The workmen  in  question  worked at various  centres  including Collection  Centre,  Kanpur, Lucknow and Varanasi  and  Main Branches,  Agra  and  Unnao of their Banks  as  detailed  in Annexure  thereof.   They  claimed that they  performed  the duties as authorised representatives of the Bank of clearing house at the Reserve Bank of India, Kanpur and State Bank in clearing  house  at  the Reserve Bank of India,  Kanpur  and State Bank of India, Lucknow, Agra, Unnao and Varanasi which fall  under  the duties of Special Assistant.   The  workmen claimed  that  they  are checking or  scrutinizing  all  the schedules  and/or  vouchers received along with the  cheques and  other instruments as per para XIX(III) of Appendix  B of  1st Bi-partite Settlement dated 19.10.1966.  The workmen claimed  that  they are entering each cheque, demand  draft, pay  slips, etc.  with their respective credit voucher i.e., Branch  Debit Note drawn on Regional Collection Centres  and Main  Branch in clearing house register and balancing as per paragraph  45.5 of Manual of Instruction, Volume I,  Chapter 127 to the following effect:

   Particulars  of  all  cheques   drawn  on  other  local clearing  banks  received  by the  Branches  for  collection should  thereafter be sorted and listed bankwise.  The total

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of  cheques entered in the clearing cheques register  should agree  with  the total amount of cheques listed on  all  the clearing  schedules  and also with the total amount  of  the relatives paying-in-slips.

   The workmen further claimed that the cheques/instruments are  sorted  bankwise  and  posted   the  cheques  etc.   in totalling  and numbering as per paragraph 45.5 of Manual  of Instruction;   that  the workmen are to check  crossing  and clearing  stamp  on  each cheques and other  instruments  on front  face  of these instruments and endorsement stamps  of the  bank on each instrument;  that the checking of total in List  of Cheques with the books of the Bank i.e.  clearing cheques  register, mentioned in each sheet for the different bank;   that  checking  each  list of  cheques  in  clearing schedule  of the bankwise with cheque numbers in the  column Delivered  in  left  hand side drawn on  other  banks  and totalling  all  the amounts of the cheques mentioned in  the different list of cheques mentioned in the different list of cheques register;  that the workmen receive various cheques, demand draft, pay slip and other instruments in the clearing house  from  different banks and also make the entry in  the column  Received bankwise with cheque numbers in the right side  and totalling all the amount and cheques mentioned  in their  different  sheets of the bank;  that the checking  is for  the correctness of endorsement crossing stamp, clearing stamps,  date  of the returning of the cheques, date of  the cheques,  comparison  of  cheques and totalling  the  amount delivered  by the different banks as per para III(I)(xi) and (iii)  of  Appendix  B of Bi-partite Settlement;   that  the workmen  prepare  debit  and credit  vouchers  according  to cheques  and  the  instruments after checking  the  clearing schedule  on  account of cheques received from  other  banks daily;   that  the workmen also sign the difference  of  the entries  such  as  to  pay or  receive  in  the  independent capacity  of authorised representative of clearing house  as Clearing  in-charge at the Reserve Bank of India and State Bank  of  India on behalf of the Bank in the clearing  house after  delivering and receiving the different instruments in sheet   for   submissions  and   receiving   the   different instruments  in sheet for submission to the Reserve Bank  of India and State Bank of India;  that the workmen are holding banks  valuable  cheques,  drafts   and  other  instruments signally  and  are accountable for them and are  responsible for  the  clearing department of the bank and prepare,  sign independently  clearing and transfer vouchers such as to pay or  receive on account of the cheques delivered or  received from  different banks through the sheet in the bank  account mentioned by the Reserve Bank of India and the State Bank of India  which constitute the additional duties and  fucntions requiring  the  greater  skill and responsibility  over  and above  the  routine duties of the workmen in terms  of  Para III(I)(xi)(ii).

   The  appellant-Bank filed a written statement contending that  though  the  workmen  have  performed  the  duties  of attending  the  clearing house on behalf of the  Bank,  they have  not  discharged  any of the duties so  as  to  attract payment  of special allowance by way of Special Assistant as none  of  the duties are being performed by them to  attract such  allowance  and denied the various claims made  by  the workmen.   They  submitted that they are  simply  delivering cheques  of  the  Bank drawn on other  banks  and  receiving cheques  drawn by other banks on their Bank at the  clearing house  after  counting the number of cheques/instruments  as

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per  schedule listing it bankwise in the sheets, arriving at the  clearing  different  and preparation of  the  different vouchers,  segregation  of the instruments categorywise  and preparation  of  debit in nature and in no way  require  any greater  skill and responsibility warranting payment of  any special allownace.  It was also contended that the duties of Special  Assistant  as  laid down in  Bi-partite  Settlement dated  19.10.1966  have  been  modified  in  the  subsequent Bi-partite  Settlement  dated  17.9.1984 and the  duties  of special  assistant  as  laid  down in  the  said  Bi-partite Settlement 1984 are as listed in the Annexure A thereto.  It was  contended  that para 5.267 of the Desai Award  has  not been modified by any subsequent Bi-partite Settlement and is still  in  existence  and  that the clerks  deputed  to  the clearing  house  are  not in charge of the  Banks  clearing department  but are simply clerks posted in that  department and  the  overall incharge of the department is  an  officer under   whom   these  clerks   are  functioning.    It   was specifically  claimed  by  the appellant  that  the  Special Assistant 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  sub-staff and will  include  several  other duties set out in Anneuxre A to the Bi-partite Settlement of 1984.

   An affidavit was filed by Jai Bahadur Singh on behalf of the appellant and it was stated therein as follows :

   That  the  clerk attached to my department amongst  the other  clerical  duties  are on rotation basis sent  to  the Bankers  clearing  house for delivering the  cheques/drafts etc   of  our  bank  drawn  on  other  Bank  and   receiving cheques/drafts  etc drawn by other banks on our bank as  per the  schedule  which  he  carries  with  him  in  duplicate. Specimen  of which is marked as Annexure A to the affidavit. Under  the  column  delivered  of   the  said  schedule  the cheques/drafts  etc.  drawn on other banks and delivered  by him  at the clearing house are entered bankwise and total is arrived  at this represents the amount of cheques  delivered by  the  Bank is clearing.  The cheques delivered  by  other banks  are entered in the column received of the  schedule bank  wise and the total is arrived at, this represents  the amount  of  cheques received.  Thereafter  the  difference between  the  amount  delivered and received is  arrived  at which is known as clearing difference.  Thereafter a copy of clearing  schedule is delivered to the officer in charge  of the  clearing house.  As such the duties being performed  by the  clerks attending the clearing house is purely  clerical in nature.

   The  Tribunal, after setting out the case of the parties and  the  evidence put forth before it in the shape  of  the affidavits, stated that though affidavits have been filed by several  persons, only two witnesses, namely, V.K.Srivastava and  Baikunth  Lal, were produced for  cross-examination  on behalf of the workmen and Jai Bahadur Singh on behalf of the management  and,  therefore,  their   affidavits  alone  are admissible.  However, the Tribunal chose not to examine that evidence on the following basis:

   .the concerned workmen have been sent to the Regional Collection  Centres  of the Reserve Bank of India and  State

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Bank  of  India at other places for verification of  cheques issued  by  their Banks.  It is also not disputed that  when these  persons went to these centres none of the officer  of the  bank  had  accompanied.  I am of the view that  when  a member  of  award staff handles and deals with  cheques  and other  instruments  within the bank premises and during  the office hours there is no element of risk and there cannot be said  to  be doing any work involving extra  responsibility. However,  the moment such workman is asked to carry  cheques and the instruments outside the bank as is being done by the concerned  workmen.   I am of the view  officer  accompanied them  at  such occasion there would be no responsibility  of these  workmen.   Hence  since  in  the  instance  case  the concerned  workmen had been carrying cheques  independently, and checking the same at the Regional Collection Centres and without  any  officer  accompanying  them,  I  come  to  the conclusion  that  had  been  performing  the  job  involving greater responsibility as well.

   Proceeding thus, the Tribunal made the award without any further examination of the matter.

   In  this  background, it becomes necessary  to  consider whether  the award made by the Tribunal can be sustained  or not.   It  is  the contention of the  respondents  that  the decision  of  this Court in Central Bank of India Ltd.   vs. Sisir Kumar Shaw, 1976 (2) SCC 859, fully covers the case of the  workmen  in question.  In that decision, it was  stated that  it  was not necessary to refer to the details  of  the Sastry  Award  of  1953 or the Desai Award which  ceased  to apply  in the year 1966, when the Bi-partite Settlement came into force.  The preamble to the Bi-partite Settlement dated 19.10.1966  states  that  the parties have agreed  that  the provisions  of  the  award known as the  Sastry  Award  as modified  by  the  Desai Award shall  govern  the  service conditions  therein  covered except to the extent  that  the same  have  been  modified by the Bi-partite  Settlement  of 1966.   If that is so, it will not be accurate to state that the  Sastry Award or the Desai Award has ceased to apply and this  position is clarified by this Court in C.A.No.7752  of 1996    Bank  of  India vs.  Presiding  Officer  and  Ors., disposed  of  on 28.11.2000.  However, that aspect will  not settle  the  problem  arising  in  the  present  case.   The question for consideration is whether the principles set out by  this  Court in Sisir Kumar Shaws case [supra] would  be applicable  to the facts of the present case.  In that case, there  was a specific finding by the Labour Court as to  the nature  of  the duties of the clerk working as the  clearing house  representative  on behalf of the bank.  While in  the present  case,  the duties discharged by the clearing  house representative  are in serious dispute.  Unless the same are adjudicated  by appropriate examination of the facts of  the case  with  reference to the contentions advanced by  either party  and  the evidence adduced, it cannot be concluded  in the  manner done by the Tribunal.  There is no finding  that the  workmen  discharge certain duties and,  therefore,  are entitled  to  special allowance in the category  of  Special Assistant.   The Tribunal has proceeded as if it was dealing with  a  fresh matter before it without reference either  to the  Bi-partite  Settlement  or to the Sastry or  the  Desai Award.  Necessarily, the Tribunal had to examine whether the workmen  in  question fall in any one of the  categories  to which special allowance is to be given or refused by the two Awards [Sastry/Desai Awards] or in the Bi-partite Settlement that  part  has  been  modified or a  new  clause  has  been

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introduced  thereto inconsistent with the Sastry/Desai Award so as to entitle to such allowance.  Unless such an exercise is undertaken and the details of the duties assigned to each of  the  workman are considered it will not be possible  for the  Tribunal to decide a matter of this nature.  Therefore, we  are  constrained  to  set aside the award  made  by  the Tribunal  and  remit  the matter to the Tribunal  for  fresh consideration  in  the light of the observations made by  us above and in accordance with the law.

   The appeal shall stand allowed accordingly.  No costs.