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PETITIONER: STATE BANK OF BIKANER & JAIPUR

       Vs.

RESPONDENT: SHRI HARI HAR NATH BHARGAVA

DATE OF JUDGMENT11/08/1971

BENCH: MITTER, G.K. BENCH: MITTER, G.K. VAIDYIALINGAM, C.A. REDDY, P. JAGANMOHAN

CITATION:  1971 AIR 2200            1972 SCR  (1) 110  1971 SCC  (2) 591

ACT: Industrial Disputes Act, 1947, s. 33C(2)-Sastry  Award-Power of  Attorney  entrusting  supervisory  work-If  entitled  to supervisory  allowance  for period when not called  upon  to discharge supervisory functions.

HEADNOTE: The respondent, a clerk of the appellant bank, was entrusted with  supervisory work and a general power of  Attorney  was executed in his favour to endorse Hundies cheques, warranty, Railway  receipts,  pension bills and other  negotiable  and mercantile instruments and to prosecute, defend, answer  and oppose any suit etc. on behalf of the appellant bank. The respondent filed an application before the Labour Court, Rajasthan  under s. 33C (2) of the Industrial Disputes  Act, praying  for  computation  of special  allowance  under  the Sastri  Award,  on  the  ground  that  he  was   discharging supervisory duties. The  Labour Court, allowed supervisory allowance of  Rs.  40 p.m.  with consequential benefits.  In appeal to this  Court the appellant bank ,contended that since the respondent  was not  called upon to perform the functions enumerated in  the power  of  attorney,  he is not  entitled  to any  special allowance. Dismissing the appeal. HELD : (i) The payment of a special allowance was called for when  an employee discharged duties of a supervisory  nature or  was  accorded  the  status  of  a  person  competent  to discharge functions of a supervisory character. [115d] (ii) Since  the  Management by the power  of  Attorney,  had placed  the  respondent  in  a  category  of  persons   with responsibility  and  entrusted  him  with  functions  of   a supervisory character and the employee was to discharge that responsibility, he was entitled to supervisory allowance  no matter,  whether  he was actually called upon  to  discharge such functions or not for a certain period of time. [1  15F, 11 6B] State Bank of’ Hyderabad v. V. A. Bhinde, [1969] 2 L. L.  J. 713, referred to.

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JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil appeal No. 1923 of 1966. Appeal  by special leave from the order dated  February  14, 1966  of the Central Govt.  Labour Court, Rajasthan,  Jaipur in Misc.  Application No. CLC-4 of 1964. G.   L. Sanghi and P.M. Tiwari for the appellant. 111 M.   K  Ramamurthi, J. Ramamurthi and Vineet Kumar, for  the respondent. The Judgment of the Court was delivered by Mitter, J. This appeal by special leave is from an order  of the  Central  Government Labour Court, Rajasthan  passed  on February 14, 1966 on an application under S. 33-C (2) of the Industrial  Disputes Act filed by the respondent,  Hari  Har Nath  Bhargava,  holding  that the latter  was  entitled  to supervisory  allowance  under paragraph 164 (b) (9)  of  the Sastry  Award  even for the period when the latter  was  not actually performing supervisory duties. The  facts  in  this  case  may  be  shortly  stated.    The respondent was appointed a clerk by the State Bank of Jaipur in  1949.  He was transferred to Kota in the year 1952.   He was  entrusted with supervisory work from 6th  April,  1954. The  bank executed a power-of-attorney in his favour on  May 31,  1954  in  pursuance of a resolution  of  its  Board  of Directors passed on 20th May, 1954.  He was transferred from Kota  to Jaipur on July 12, 1955.  On December 27,  1955  he was  posted  at Sikar where he had  to  perform  supervisory duties.  On January 1, 1956 he was promoted to the cadre  of junior officers of the bank. On March 31, 1964 the respondent filed an application before the Central Government Labour Court, Rajasthan under S. 33-C (2) praying for computation of special allowance under  what is known as the Sastry Award on the ground that he had  been discharging  supervisory duties from 6th April, 1954 to  1st January,  1956.   By  this  time  the  Bank  of  Jaipur  had amalgamated  with  the Bank of Bikaner and  the  amalgamated bank, the appellant before us, came to be known as the State Bank  of Bikaner and Jaipur.  The execution of the power  of attorney dated 29th May, 1954 was admitted but the appellant denied   "that  the  duties  entrusted  to  the   respondent constituted performance by him of any supervisory nature  of work".   A point was also taken that although no  period  of limitation  is  laid  down by any  statute  with  regard  to applications under S. 33-C of the Act the respondent’s claim being a stale one should not be entertained. 112 The appellant amended its written statement in 1965  wherein it  was  stated  that the respondent was  only  required  to perform the functions enumerated in the power of attorney as and  when so directed by the bank.  As a matter of fact,  he had  been entrusted with supervisory duties from 6th  April, 1954  to 12th July, 1955 and thereafter from 27th  December, 1955 to 6th January, 1956. The respondent was examined before the Labour Court where he said  that he was "the second signatory at Kota  during  the period,  April 1954 to middle of July 1955".  At the  Jaipur branch where he was transferred, there were many signatories above  him,  while  at Sikar there  was  only  another  such signatory and he was the second officer.  Obviously what  he meant by the word "signatory" was a person authorised by the bank  to  discharge the functions covered by  the  power  of attorney. The relevant portion of the said power of attorney read               "The  Bank do here by nominate constitute  and

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             appoint  Shree Hari Har Nath Bhargava  in  the               service  of  the said bank at Kota to  be  the               true  and lawful attorney of the said bank  at               its  registered office at Jaipur aforesaid  or               at  any other place or places in  India  where               the  said bank may have or establish  branches               or  agencies and to which he may from time  to               time  or at any time be appointed by the  said               bank  as  Branch  Manager,  Agent,  Sub-Agent,               Accountant,  or in any capacity  whatever  for               and  in the name of and on behalf of the  said               bank  to do, transact jointly with  Secretary,               Manager,  Sub-Manager  etc.  the  matters  and               things mentioned thereafter." The matters mentioned included the endorsement of  "hundies, drafts,  cheques, warrants, railway receipts, pension  bills and  other  negotiable  and mercantile  instruments  and  to commence, prosecute, enforce, defend, answer and oppose  any suit  or  other legal proceedings and demands  touching  any matters  in  which  the  bank  was  or  may  thereafter   be interested or concerned." 113 It  is worthy of note that after the execution of the  power of  attorney  the  respondent was  empowered  to,  discharge functions  which could only be described as. supervisory  in nature  and unless there was a command or direction that  he should  not act thereon or unless the power of attorney  was cancelled  his authority, to act in a  supervisory  capacity would continue in force. The  Sastry Award is not on record in extenso but  paragraph 164  thereof quoted by the Labour Court shows; that  certain categories  of  employees were to be considered as  fit  for special    allowances.     These   included    inter    alia stenographers,   cashiers  (other  than   routine   clerks), supervisors,  clerks-in-charge, departmental-in-charges  and head clerks.  The award noted that although scales of  basic pay  and  dearness allowance for  clerical  and  subordinate staffs  had been laid down for doing ordinary duties,  there were  certain  posts  even  in these  grades  for  which  an incumbent  required special qualifications or skill for  the efficient  discharge  of the duties assigned  and  an  extra payment  in such cases was necessary by way of,  recognition of  and compensation for the skill or  responsibility.   The award further noted that :               "Having  regard  to  the  numerous  banks   of               varying sizes  and  resources,  it  is   not               possible  to  have  one  general  pattern   of               allowances   for   such   special   types   of               work.......  It is neither easy nor  desirable               to bring them all into one fairly general rule               regardless  of  the bank’s  past  practice  or               present capacity." Paragraph 162 of the award shows that there were three, ways in which this extra payment might be provided for               (1)   The  employee might be given  additional               increments in the same scale.               (2)   He might be paid a lump-sum allowance in               addition  to his other emoluments.   This  was               said  to have the advantage of carrying a  man               even beyond the usual maximum limit.               (3)   He might be given a higher scale leading               up to a higher maximum. 114 According  to the award it was on the whole better to  adopt either  the first or the second method or sometimes  even  a

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combination of both. According to the Labour Court the underlying idea behind the said  award  was that when one general  scale  for  clerical service had been provided in the award, it was thought  just and proper that persons with special qualifications or skill required  for  discharging  work carrying  with  it  greater responsibility  than  the usual work should  definitely  get higher  emoluments  than the ordinary workmen.   The  Labour Court  said that "this did not mean that the person  of  the same  qualifications  and  skill who had  been  granted  the powers  of  attorney by the bank should be  allowed  special allowance  only for any particular period unless a  man  was temporarily  appointed  to  do supervisory  work".   In  the result, the Labour Court allowed the respondent  supervisory allowance  at Rs. 40 p.m. with ,effect from 6th April,  1954 to 31st December, 1955 with, consequential benefits. It  is  to be noted however that although a point  had  been taken  in the written statement of the bank about the  delay in  the filling of the application under S. 33-C it had  not been pressed before the Labour Court. Mr.  Sanghi  appearing  for the appellant  was  prepared  to concede  that so far as the periods 6th April, 1954 to  12th July,  1955 and 27th December, 1955 to 31st  December,  1955 were  concerned he was not contesting the claim.  But in  so far as the period 13th July, 1955 to 27th December, 1955 was concerned, his client was pressing the appeal as a matter of principle  as  this would constitute a test  case  by  which other similar cases might fall to be decided. This  Court  had  to deal with a  case  where  an  identical question  arose.  In State Bank of Hyderabad v. V. A.  Bhide (1) this Court had to consider the claims of the respondents in  that appeal for payment of special allowance granted  to supervisors  under what were known as the Sastry  and  Desai awards.  It was there contended on behalf ,of the  appellant bank  that in order to claim the supervisory  allowance  the parties  must  establish that the main or  essential  duties entrusted to them and actually discharged by (1)[1969] 2 L.L.J. 713. them  were  duties and functions of  a  supervisory  nature. This  Court  considered  the Sastry  and  Desai  awards  and observed (at p. 727) :               "..before  a person can claim the  supervisory               special  allowance, he must establish that  he               has discharged the duties and functions  which               are  similar to 0r the same as the  duties  or               functions assigned to supervisors coming under               category 9. This decision [Lloyds Bank Ltd. v.               Panna Lal Gupta and others (1)] also makes  it               clear  that  in  deciding  the  status  of  an               employee  claiming the special allowance,  the               designation  of the employee is  not  decisive               and   what   determines  the   status   is   a               consideration of the nature of the duties  and               functions assigned to the employee concerned." In our view the payment of a special allowance is called for when  an employee discharges duties of a supervisory  nature or is accorded the status of a person competent to discharge functions  of  a  supervisory character.   If  no  power  of attorney  is  execute&  as  in this case  but  in  fact  the employee  is  asked  to render  services  of  a  supervisory character and the employee does such work at the request  of the  bank,  he  becomes entailed  to  the  allowance.   Once however a power of attorney giving the wide powers of agency as was done in this case is executed, it should be held that the management had placed him in a category of persons  with

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responsibility  and  the  employee  was  to  discharge   the responsibility  without any further request in that  behalf. It  may be that the initial giving of power of attorney  was necessitated  by  the fact that at Kota there was  only  one officer  besides the respondent who could  discharge  duties like endorsing hundies, drafts etc. and it became  necessary for  the  bank to have a second officer who could  carry  on this kind of work.  But the power of attorney does not  show that the bank thought it necessary to-clothe the  respondent with the said powers only for discharging his duties when he was  at  Kota.  The power of attorney was operative  at  any branch of the bank irrespective of the capacity which  might be occupied by the respondent at a particular point of time. It may be (1)  [1961] 1 L.L.J. 18. 116 that  at Jaipur there was a number of officers  superior  to the  respondent  who  were  empowered  to  discharge  duties mentioned  in  the  power  of attorney  but  this  does  not necessarily  lead to the inference that the respondent  lost his  responsibility  or was denuded of the powers  while  he was  at  Jaipur.  If he discharged any of the  duties  men- tioned in the power of attorney the same would be lawful and would  be  binding on the bank.  The fact that  he  was  not actually  called  upon to discharge such functions  did  not take  away  from his responsibility or status  of  a  person ,competent to discharge functions of a supervisory character and  we  see  no  reason  why  he  should  be  deprived of supervisory allowance unless the bank gave him notice that he was not to act on the power of attorney while at  Jaipur. We  therefore  hold that the Labour Court had  come  to  the correct conclusion. Mr.  Sanghi tried to urge the point that the  Labour  ,Court should  not  have  entertained  the  application  as   being inordinately  belated and that even though the Labour  Court did not adjudicate on this point it was open- to the bank to urge it before us.  We made it clear that we were not  going to  entertain this plea in view of the fact  that although the  point  had been taken in the written statement  of  the bank,  it  was  not agitated before  the  Labour  Court  and further was not taken even in the special leave petition. In the result, the appeal is dismissed.  The order for costs made  at  the time of the grant of the  special  leave  will stand. S.C.                                   Appeal dismissed. 117