Appeal No178 of 1963
Appeal by special leave from the order dated November 27 1961 of the Central Government Labour Court Delhi Camp at Madras in LCA No 564 of 1961
MC Setalvad JN Hazarika and KP Gupta for the appellant
MK Ramamurthi RK Garg SC Agarwal and DP Singh for the respondent
December 2 1963
The Judgment of the Court was delivered by DAS GUPTA J
This appeal arises out of an application under section 33C2 of the Industrial Disputes Act
The respondent AR Chacko was working as a clerk in the Coimbatore Branch of the appellant Bank when by an order dated June 19 1959 he was promoted as Accountant and was transferred to the Alleppy Branch of the Bank
The appellant s pay in the new post was fixed by an order on July 16 1960
By this order he was allowed Rs 120 as basic pay in the new grade of Rs 120 10 160 from January 1 1960
From August 1 1960 and thereafter he was allowed to draw Rs 10 per month as CAIIB allowance
The petitioner s case in the application under section 33C2 is based on the contention that after his promotion to the post of accountant with additional supervisory duties he was entitled to the special allowance of Rs 40 tinder Para 164 of the Sastry Award
His case is that he was entitled from the date of his joining as accountant ie from July 13 1959 a to a basic pay of Rs 95 of his old grade with annual increments due on December 1 every year ie at the rate of Rs 95 in the month of August September October and November 1959 and thereafter at the rate of 628 Rs 100 from December 1959 to November 1960 and thereafter at the rate of Rs 106 from December 1960 b special allowance of Rs 40 per month for the additional supervisory duties and c dearness allowance in terms of the award
The total amount to which he would be entitled thus would be Rs 449522
The amount actually paid to him for the period July 13 1959 to the end of March 1961 for which the application was brought was Rs 363773
He claimed to be entitled to the additional amount of Rs 85549 and prayed that the Labour Court be pleased to issue a certificate for this amount to the Collector authorising the Collector to recover the amount in accordance with law
In resisting this application the Bank contended 1 that such an application under section 33C2 of the was incompetent 2 that in any case the matter would be one within the jurisdiction of an industrial tribunal and not the Labour Court 3 that the Sastry Award had ceased to be operative from March 31 1959 long before the date of the respondent s appointment as an accountant and so no benefits accrued to him under that award and 4 by his appointment as accountant the respondent had ceased to be a workman and was therefore not entitled to the benefits of the Sastry Award
The Labour Court rejected all these objections and allowing the application computed the amount due to the respondent from the Bank to be Rs 85549
Against this decision the present appeal has been filed by special leave
The first objection raised by the Bank is now concluded by the decision of this Court in the Central Bank of India vs P section Rajagopalan 1 where it has been held that such an application by workmen lies under section 33C2 of the Act
In support of the second objection Mr Setalvad drew our attention to the second schedule to the  which sets out the matters within the jurisdiction of the Labour Court but 1  629 does not include any which could be said to cover an application under section 33C2
The contention is clearly misconceived
The schedule refers specifically to section 7 of the Act
That section lays down that the appropriate government may by notification in the official gazette constitute one or more Labour Courts for the adjudication of industrial disputes relating to any matter specified in the second Schedule and for performing such other functions as may be assigned to them under this Act
Section 33C2 in terms assigns the determination of the amount of benefit to which the workman is entitled to receive from the employer and which is capable of being computed in terms of money to such Labour Court as may be specified in this behalf by the appropriate Government
Clearly therefore the Labour Court as specified by the government and not the Industrial Tribunal has jurisdiction to deal with this matter
In support of the third objection raised by the Bank Mr Setalvad drew our attention to section 4 of the  and argued that in view of this provision the respondent was not entitled to any benefit of the Sastry Award in July 1959 when he was asked to perform the additional supervisory duties
Section 4 runs thus Notwithstanding anything contained in the  or the Industrial Disputes Appellate Tribunal Act 1950 the award as now modified by the decision of the Labour Appellate Tribunal in the manner referred to in section 3 shall remain in force until March 3 1 1959
 It is said that the non obstante clause Notwithstanding anything contained in the  makes the provisions of section 196 inapplicable to the Sastry Award and so the provision there that the award shall continue to be binding on the parties until a period of two months had elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating 630 its intention to terminate the award does not come into operation
To this objection two answers are available
The first is that there is difference between an award being in operation and an award being binding on the parties
The different provisions made by the legislature in section 193 and section 196 illustrate this distinction
Under section 193 the award remains in operation for a period of one year
The words from the date on which the award becomes enforceable under section 17A were inserted after the words  period of one year by the amending Act of 1956
Section 196 is in these words Notwithstanding the expiry of the period of operation under sub section 3 the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any party bound by the award to the other party or parties intimating its intention to terminate the award
 This makes it clear that after the period of operation of an award has expired the award does not cease to be effective
For it continues to be binding thereafter on the parties until notice has been given by one of the parties of the intention to terminate it and two months have elapsed from the date of such notice
The effect of section 4 of the is that the award ceased to be in force after March 31 1959
That however has nothing to do with the question as to the period for which it will remain binding on the parties thereafter
The provision in section 196 as regards the period for which the award shall continue to be binding on the parties is not in any way affected by section 4 of the Industrial Dispute Banking Companies Decision Act 1955
Quite apart from this however it appears to us that even if an award has ceased to be in operation or in force and has ceased to be binding on the parties under the provisions of section 196 it will continue to have its effect as a contract between the parties that has been made by industrial adjudication in place 631 of the old contract
So long as the award remains in operation under section 193 section 23c stands in the way of any strike by the workmen and lock out by the employer in respect of any matter covered by the award
Again so long as the award is binding on a party breach of any of its terms will make the party liable to penalty under section 29 of the Act to imprisonment which may extend to six months or with fine or with both
After the period of its operation and also the period for which the award is binding have elapsed section 23 and section 29 can have no operation
We can how ever see nothing in the scheme of the to justify a conclusion that merely because these special provisions as regards prohibition of strikes and lock outs and of penalties for breach of award cease to be effective the new contract as embodied in the award should also cease to be effective
On the contrary the very purpose for which industrial adjudication has been given the peculiar authority and right of making new contracts between employers and workmen makes it reasonable to think that even though the period of operation of the award and the period for which it remains binding on the parties may elapse in respect of both of which special provisions have been made under sections 23 and 29 respectively may expire the new contract would continue to govern the relations between the parties till it is displaced by another contract
The objection that no such benefit as claimed could accrue to the respondent after March 31 1959 must therefore be rejected
This brings us to the last objection that on appointment as accountant the respondent Chacko ceased to be a workman
Admittedly the mere fact that he was designated as accountant would not take him out of the category of workman
This was recognised in para 332 of the Sastry Award when it was said The categories of workmen known as Head Clerks Accountants Head Cashiers should prima facie be taken as workmen wherever they desire to be so treated but with this important proviso 632 that the banks are at liberty to raise an industrial dispute about such classification wherever they feel that with reference to a particular branch and a particular office a person so designated is really entrusted with work of a directional and controlling nature and perhaps even supervision of a higher type over ordinary supervisory agencies
 In para 167 where the case of accountants was specially dealt with it was again said In several cases they will indisputably be officers
It is difficult to lay down a hard and fast rule in respect of them
An Accountant oftentimes is the second officer in charge of branches particularly where the branches are comparatively small
In big banks where there is a hierarchy of officers there may be a chief accountant accountants and sub accountants
In most of these cases the accountants will probably be officers
There will however be incumbents of such posts though going under the dignified designation of accountants who are in reality only senior clerks doing higher type of clerical work involving an element of supervision over other clerks as part of their duties
In such cases where they can properly be regarded as workman the minimum allowances which we have fixed for sub accountants would equally apply to them
 The Labour Court appears to have taken proper note of this distinction between accountants who are really officers and accountants who are merely senior clerks with supervisory duties and on a consideration of the evidence on the record as regards the duties actually performed by the respondent Chacko has come to the conclusion that he was merely a senior clerk doing mainly clerical duties and going by the designation of accountant and was in reality a workman as defined in the and doing an element of supervisory work
633 We can find no mistake in the approach of the Labour Court to the question nor can we see any justification for interfering with its conclusion on the evidence in the case
All the relevant documents produced have been duly considered by the Labour Court in light of the oral evidence given and on such consideration it has come to the conclusion that though on paper certain rights and powers were assigned to him and occasionally he acted in the place of the Agent when the Agent was absent such duties did not form part of his principal and main duties
Mr Setalvad drew our attention to a copy of the resolution passed by the Board of Directors under which the respondent as Accountant was authorised to make draw sign endorse purchase sell discount and negotiate Bills of Exchange Hundies Drafts Cheques Promissory Notes and other Nego tiable instruments in the name of and on behalf of the Bank and also to operate upon all banking account maintained by this Bank with banks bankers and others in India for and on behalf of the South Indian Bank Limited
 This resolution was dated July 18 1959 and on the same date a circular letter was issued to all branches sending a binder containing specimen signatures of all the officers of the Bank and the respondent s name was also included in this list
In spite of this however as pointed out by the Labour Court it does not appear from the evidence that generally Mr Chacko had occasion to exercise the several powers said to have been granted to him
A truer picture of his actual functions appears from a document dated August 28 1961 signed by the Agent which was put in evidence as Ex1
and the correctness of which does not appear to have been challenged on behalf of the Bank authorities
The list of duties mentioned in this document clearly shows that these are almost wholly clerical the only exception being Item 14 viz and other work entrusted to him by the Agent from time to time
 The Labour Court has also pointed out that no power of attorney was granted to Mr Chacko
When on a consideration 634 of all the relevant evidence the Labour Court has come to the conclusion that the duties performed by the respondent consisted of clerical work with supervisory functions and were certainly not managerial or administrative as contended for by the Bank we find no reason to interfere with that conclusion
It is pertinent to notice that on the Bank s case a workman in the position of Chacko would on promotion to the rank of an officer from that of a workman be financially a loser by being deprived of the special allowance which he would have got as a workman with supervisory duties without obtaining sufficient recompense for the same because of the performance of the so called managerial and administrative duties
It is not unreasonable to think that this so called promotion to officer s grade was really intended to undo the effect of the recommendations of the Sastry Award for this supervisory allowance
is difficult to understand otherwise that persons with higher responsibilities and managerial duties to perform would in fact be getting less in rupees and annas than what they would be getting as workmen
In the circumstances the finding of the Labour Court that the respondent was a workman entitled to the benefits of the Sastry Award cannot be successfully challenged
All the points taken in the appeal therefore fail
The appeal is dismissed with costs
Appeal dismissed


Summary:
The respondent a clerk in the appellant Bank was promoted as Accountant and his pay was fixed in the new post
The respondent filed an application under section 33C2 of the Industrial Disputes Act claiming that he was entitled from the date of his joining as accountant a to the basic pay of his old grade with annual increments due on December 1 every year b special allowance of Rs 40 per month for the additional supervisory duties under para 164 of the Sastry Award and c dearness allowance in terms of the award and prayed to the Labour Court for recovery of the amount due to him
In resisting this application the appellant contended 1 that such an application under section 33C2 was incompetent 2 that in any case the matter would be one within the jurisdiction of an industrial tribunal and not the Labour Court 3 that the Sastry Award had ceased to be operative long before the date of the respondent s appointment as an Accountant and so no benefits accrued to him under that Award and 4 that by his appointment as accountant the respondent had ceased to be a workman and therefore not entitled to the benefit of the Sastry Award
The Labour Court rejected all these ob jections and allowed the application
In appeal by special leave
Held i Such an application by workmen lies under s33C2 of the Industrial Disputes Act
Central Bank of India vs PS Rajagopalan 1964 3 SCR 140 followed
ii In view of the provisions of section 7 and section 33C2 the Labour Court as specified by the Government and not the Industrial Tribunal has jurisdiction to deal with this matter
iii The objection that no benefit as claimed could accrue to the respondent after the Sastry Award had ceased to be operative must be rejected
The provision in section 196 as regards the period for which the award shall continue to be binding is not in any way affected by section 4 of the Industrial Disputes Banking Companies Decision Act
The different provisions made by the legislature in section 193 and section 196 illustrate the distinction between an award being in operation and an award being binding on the parties
Section 196 makes clear that after the period of operation of an award has expired the award does not cease to be effective
Though in consequence of section 4 of the Industrial Disputes Banking companies Decision Act the Award remained in force only until March 31 1959 it continued to have effect as a contract between the parties that had been made by industrial adjudication in place of the old contract
iv On consideration of the evidence in the present case the respondent was merely a senior clerk doing mainly clerical duties 627 and going by the designation of accountant and was in reality a workman as defined in the Industrial Disputes Act doing an element of supervisory work
The Labour Court has taken proper note of the distinction between accountants who are really officers and accountants who are merely senior clerks with supervisory duties as envisaged by the Sastry Award