IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.K.MOHANAN FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 WP(C).No. 32006 of 2006(I) -------------------------------------- ORDER IN ID.7/2006 & 8/2006 OF CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL- CUM- LABOUR COURT, ERNAKULAM. .................... PETITIONER: ------------------- THE CATHOLIC SYRIAN BANK, H.O THRISSUR -680 020, REPRESENTED BY ITS CHAIRMAN. BY MR.B.S.KRISHNAN, SENIOR ADVOCATE, ADVS.MR.K.ANAND, SMT.LATHA KRISHNAN. RESPONDENTS: ------------------------ 1. THE CATHOLIC SYRIAN BANK STAFF ASSOCIATION, AIBEA HOUSE, KALEIATH, ROYAL SQUARE, PALACE ROAD, P.B. 506, THRISSUR 680 020, REPRESENTED BY ITS GENERAL SECRETARY. 2. CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, KARSHAKA ROAD, ERNAKULAM. R1 BY SMT.P.A.ANITHA, R2 BY M.R.JAYAPRASAD, C.G.C. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/07/2009, THE COURT ON 31/07/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.32006/2006-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COMMON AWARD OF CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM DTD. 18/07/06 IN I.D. 7/06 AND I.D. 8/06. EXT.P.2: COPY OF THE BIPARTITE SETTLEMENT DTD. 29/10/93. EXT.P.3: COPY OF THE 7TH BIPARTITE SETTLEMENT DTD. 27/03/2000. EXT.P.4: COPY OF THE BIPARTITE SETTLEMENT DTD. 29/03/87. EXT.P.5: COPY OF THE LETTER DTD. 06/07/2000 OF CATHOLIC SYRIAN BANK STAFF ASSOCIATION. EXT.P.6: COPY OF THE LETTER DTD. 24/10/2000 OF INDIAN BANKS ASSOCIATION SENT TO THE MANAGEMENT. EXT.P.7: COPY OF THE REFERENCE ORDER DTD.03/09/01 ISSUED BY THE MINISTRY OF LABOUR, GOVERNMENT OF INDIA. EXT.P.8: COPY OF THE CLAIM STATEMENT DTD. 31/10/01 FILED BY THE UNION. EXT.P.9: COPY OF THE WRITTEN STATEMENT DTD. 03/02/03 FILED BY THE MANAGEMENT. EXT.P.10: COPY OF THE REFERENCE ORDER DTD. 08/01/02 ISSUED BY MINISTRY OF LABOUR, GOVERNMENT OF INDIA. EXT.P.11: COPY OF THE WRITTEN STATEMENT FILED BY THE MANAGEMENT ON 21/10/03. EXT.P.12: COPY OF THE REJOINDER DTD. 29/05/04 FILED BY THE UNION. EXT.P.13: COPY OF THE LETTER DTD. 10/10/06 OF CENTRAL GOVERNMENT INDUSTRIAL TRIBUNAL CUM LABOUR COURT, ERNAKULAM ADDRESSED TO THE PARTIES IN THE DISPUTE. RESPONDENTS' EXHIBITS: EXT.R1.A: COPY OF THE RELEVANT EXTRACT OF BIPARTITE SETTLEMENT DTD. 29/03/87. EXT.R1.B: COPY OF THE SCHEDULE II OF BIPARTITE SETTLEMENT DTD. 27/03/00. //TRUE COPY// P.S. TO JUDGE. Prv. V.K.MOHANAN, J. ---------------------------------------- WPC. No. 32006 OF 2006 ---------------------------------------- Dated, 31st the day of July, 2009 JUDGMENT The management, a party to an industrial dispute, preferred this writ petition challenging Ext.P1 award. 2. According to the petitioner management, the service conditions of employees (award staff) in the petitioner bank were governed by bipartite settlements entered into between the Indian Banks Association representing various employer banks and unions representing the workmen in the Banking Industry. Thus, Ext.P2 dated 29.10.93 is the Bipartite Agreement which provides that selection of branches for computerization and the choice of application, level of technology to be used (including hardwares and softwares and networking of computers within the bank and networking of branches, single window operations etc.), shall be at the sole discretion of the respective banks. According to the petitioner, the settlement provides for payment of special allowance to employees entrusted with the works related WPC 32006/06 -:2:- to the operations of data entry and computing. The special allowance for the data entry operation is at the rate of Rs.215/- per month. The special allowance for the Advanced Ledger Posting Machine Operator (ALPM) and Advanced Electronic Accounting Machine Operator (AEAMS) were at the rate of Rs.350/- per month and for the Computer Operators, at the rate of 410/- per month. According to the management, the special allowances specified above shall be payable only to such operators assigned actual data entry and computing works at counter or otherwise on regular basis and not to the employees who are using machines for correspondence and other works unrelated to computing and data entry. According to the petitioner, in most of the branches, personal computers are used to perform the functions, similar to that being carried out in Advanced Ledger Posting Machine (ALPM) and computers, used are single PC/2PC without terminals. Therefore, the clerical staff operating personal computer at branches are being paid special allowance payable to ALPM operators. Ext.P3 is the copy of WPC 32006/06 -:3:- the 7th Bipartite Settlement dated 27.3.2000. As per the terms of Ext.P3 settlement, data entry Operators will get Rs. 440/- per month for the work assigned to them which is mentioned as Data Entry . In the case of Advanced Ledger Posting Machine Operators (ALPM), the amount wold be Rs.540/- per month. Their work is operation of ALPM. The third category is computer Operators. Their special allowance is Rs.633/- per month. So according to the management, all the computer operators are not entitled to get the amount fixed for the computer operator, if he is doing only the operation of ALPM. According to the management, irrespective of the above special conditions and fixation of charge considering the nature of work assigned, the Ist respondent Union raised industrial dispute demanding special allowance of Computer Operators to all employees in single/2 PC operations. 3. In I.D.No.7/2006, the issue referred for adjudication was: “Whether the action of the management of WPC 32006/06 -:4:- Catholic Syrian Bank Ltd. in not paying computer Allowance to entitled workmen in violation of the 7 th Bipartite Settlement is justified? If not, what relief the workmen concerned are entitled?”. Whereas in I.D.No.8/2006, the issue referred for adjudication was: “ Whether the action of the management of the Catholic Syrian Bank Ltd. in paying Advanced Ledger Machine Allowance which is less than the entitled computer allowance which is higher than the presently paid A.L.P.M. allowance in violation of the terms of the 7 th Bipartite Settlement is just and fair? If not, to what relief they are entitled?” The Union in both the disputes is one and the same which filed claim statement only in I.D.No.7/2006. The Management has filed written statement in both these I.D.cases. The specific claim raised by the Union is that even after ALPMs were substituted by Personal Computers, the management continued to pay only ALPM allowance to some of the computer operators. The ALPM allowance is less than computer allowance. According to WPC 32006/06 -:5:- the Unions, the functions done by the operators using personal computers are not the same as was done in ALPMs. Hence the union claims computer allowance to all the operators who are using personal computers in different branches of the bank. The contention raised by the management is similar to that taken in this writ petition which I have already mentioned and hence not proposed to repeat the same. 4. On the basis of the rival contentions, the Central Government Industrial Tribunal-Cum-Labour Court, Ernakulam, where the above two cases were tried together , framed a single issue for its consideration as to “whether all the operators of personal computers are entitled to get computer allowance or not?” Before the Tribunal, the workmen adduced evidence consists of oral testimony of WW1 and documentary evidence as Exts.W1 to W3. From the part of the management, one witness was examined as MW1 and Exts.M1 to M8 were marked as documentary evidence. The Tribunal after its enquiry found that all the WPC 32006/06 -:6:- computer operators, irrespective of the nature of the work they are doing, are entitled for computer allowance at the rate of Rs.633/- or at subsequent revised rate, if any. On the basis of the above finding, an award was passed holding that all the computer operators, whether in single PC or two PC branches or PC under LAN/UNIX system, are entitled for computer allowance and the action of the management in paying some of such operators only ALPM/AEAM allowance cannot be justified. It is the above finding and award challenged in this writ petition. 5. On behalf of the Unions, a detailed counter affidavit is filed. In the above counter affidavit, it is stated that the management witness when cross-examined deposed that there is no ALPM machine in the Bank. It is also stated that IBS software, which is installed in all branches of the Bank could not be installed in a ALPM. Thus, according to the Union, in the branches of the management/ petitioner, only one computer is being used and therefore, the Operator of such computer is entitled to get Computer Operators' allowance and not ALPM WPC 32006/06 -:7:- Operators' Allowance. It is also contended that there is no evidence or case for the petitioner's bank that where a single PC is provided in a branch, only one function is being performed in that PC. So according to the Union, the criteria is whether the machine deployed or operated, is capable of more than one function. Therefore, according to the Union, the award passed by the Tribunal is in accordance with the evidence and materials on record and fully in accordance with the provisions contained in the Bipartite settlement. During the course of argument, the learned counsel for the respondent/union cited the following decisions in State Bank of India v. K.C.Tharakan & Ors{(2005) 8 SCC 428} and Calcutta Port Shramik Union v. Calcutta R.T. Assocn . (AIR 1988 SC 216). 6. I have carefully considered the arguments of the counsel for the petitioner as well as the respondent/union. I have also perused the materials on record. 7. In the light of the introduction of the computer system in the banking business, provisions are made in the Bipartite settlement with respect to the nature of work WPC 32006/06 -:8:- and assignment of such workload through such modern devices and also provisions are made for the payment of wages for operating such modern equipments on the basis of the load of work and nature of work assigned. Ext.P2 is the Bipartite settlement dated 29th October, 1993. Ext.P3 is the 7th Bipartite Settlement dated 27th March, 2000. In Ext.P3 settlement, the rate of charges or wages fixed for the computer operators and other devices, were revised. Learned Counsel for the petitioner invited my attention to clauses XII and XVI of Ext.P2 which are relevant. As per Clause XII which reads: “Branches where Advanced Ledger Posting Machines (ALPMs) and/or Advanced Electronic Accounting Machines (AEAMS) are installed prior to this settlement and where such branches do not meet the criteria of minimum 750 vouchers as provided in Clause III(a) of this settlement such branches may be fully or partly computerised as per the discretion of the management under the provision of eligibility in Clause III(e) of this settlement. If, however in any bank there are branches in excess of the total number of eligible branches, in terms of this settlement, such branches will be upgraded, but shall be set off against future entitlement of the concerned bank under Clause III(e) of this settlement, WPC 32006/06 -:9:- Existing permanent ALPM/AEAM operators shall have preference to be computer operators on upgradation subject to the rules prescribed for selection and posting of computer operators. All existing permanent ALPM/AEAM operators shall continue to draw the present allowance. ALPM/AEAM operators rendered surplus as a result of reduction/substitution of ALPMs/AEAMs may, however, be deployed by the management at their discretion in the same city/town as stipulated in Clause XXI with the continuance of present allowance.” As per the above provisions of the Bipartite Settlement, existing permanent ALPM/AEAM operators have preference to be computer operators on up-gradation subject to the rules prescribed for selection and posting of computer operators and all existing permanent ALPM/AEAM operators shall continue to draw the allowance at the time. Clause XVI deals with special Allowance. As per Clause 16, it is stated that “ the special allowance specified above shall be payable only to such operators assigned actual data entry and computing work at WPC 32006/06 -:10:- counters or otherwise” but not to those who are using machines for correspondence and other work unrelated to computing and data entry.” In page 43 in this writ petition, Schedule-II regarding Special Pay is shown attached to Ext.P3 Bipartite Settlements. There, item No. 21 to 25 deals with deals with Computer Operator, Data Entry Operator, Encoder Operator, Advanced Ledger Posting Machine Operator and Advanced Electronic Accounting Machine Operator. Thus, according to the learned counsel, even though personal computers are established in the counter of the banks, the staff who are doing the job which they were doing in ALPM entitled to get the wages for such work as envisaged in Schedule-II to Ext.P3 Bipartite Settlement. According to the Counsel, if all the staff who operate personal computer are entitled for computer operator's allowance, there need not be such separate wage structure, even after introduction of personal computers. WPC 32006/06 -:11:- 8. Resisting the above contention, the learned counsel appearing for the respondent union emphatically submitted that the wage structure meant for ALPM/AEAM are applicable only to staff who are operating such machines. But the allowance meant for Computer Operators are applicable to all the staff who handle computer irrespective of the fact whether they undertake the work of Advanced Ledger Posting, Data Entry Operation or any other work assigned to them. It is also the case of the counsel for the respondent union that the petitioner has miserably failed to adduce evidence before the Tribunal to substantiate their contention. It is also submitted that no interference is warranted from this Court with the impugned award as this Court has no jurisdiction to sit in appeal over the award. The learned counsel for the respondent Union invited my attention to 1983 Supplementary Settlement, particularly, sub-clauses 1 to 9 of Clause 1. The purposes for which electronic machines and computers are used in banks are mentioned WPC 32006/06 -:12:- in sub-clauses (I) and (II) of Clause 1. In Ext.P1 award, the same is separately indicated. Thus according to Clause 1(I), Accounting Machines electric/electronic are utilized in the banks for five purposes and such purposes referred in Clause 1(I) are exclusively for accounting machines electric/electronic, other than computers. (emphasis supplied). In Clause 1(I), it is specifically stated that no accounting machines will be used at rural branches and no electronic machines with memory will be installed at semi-urban centers except as provided in sub-clauses (i) and (ii) of Clause 1. In Sub-clause (II) of Clause 1, the purposes for which the computers are being used is mentioned. 9. In this context, the evidence placed on records, especially, through the management witness viz., MW1, is very relevant for considering the issue. In paragraph 10 of the Award, the Tribunal has stated the evidence of MW1 and appreciated the same which runs as follows: “It is admitted by MW1 that no WPC 32006/06 -:13:- ALPMs/AEAMs are in function now in any of the branches of the bank. They are replaced by Personal Computers. If so, all operators are computer operators”. Thus, ALPMs/AEAMs are not functioning in any of the branches of the management/petitioner bank and they are replaced by personal computers. If that be so, an employee who operates personal computer has to do the work in addition to what contained in Clause 2 of Supplementary Settlement dated 8.9.83 and all work which were being done through accounting machines, electric/electronic. 10. To get over the above position, it is the contention of the management that even though computers are provided instead of ALPMs/AEAMs, some of the computers are used only for a single function like SB Account or Current Account or one of the operations out of 10 programmes (functions) set in PCs. Thus, according to the management, though employees are operating computers, they are doing the same work that was done WPC 32006/06 -:14:- in ALPMs/AEAMs. But there is no evidence or materials to substantiate the above contention of the management. Though I have repeatedly perused the impugned award and the facts set forth in the writ petition, no such material is seen referred to substantiate the above contention. It is also pointed out that there is no provision in the Settlement that allowance shall be paid to the employee depending upon the nature of the work done in the personal computer or workload. It is also beyond dispute that on introduction of computerization in the banking business, all the branches of the petitioner's bank are fully computerised. Therefore, even after computerisation, wherever, ALPMs/AEAMs are operated, other than through computer, such staff will be paid as per the wage structure for such work meant for ALPMs/AEAMs. In the light of the deposition made by MW1, that no ALPMs/AEAMs are not functioning in any of the branches of the bank and, especially, when there is no provision in the Settlement for payment of the allowances depending upon the nature WPC 32006/06 -:15:- of the work done in the Personal Computers or workload, the question of payment of wages that meant for ALPMs/AEAMs does not arise. There is no evidence or materials to come into a different conclusion. In the light of the above factual scenario and the available evidence and materials on record, the observation made by the Tribunal which contained in paragraph 12 that, “assuming that the work done by the computer operators in some branches is the same as was done when ALPMs/AEAMs alone were available, even then such computer operators cannot be denied computer allowance, because the terms of Settlement do not make any distinction between computer operators in single PC/two PC branches and PC under LAN/UNIX system”, cannot be said as illegal or unwarranted. If that be so, I find no perversity, illegality or irregularity with the award of the Tribunal and its finding that all the computer operators, whether in single PC or two PC branches or PC under LAN/UNIX system, are entitled for computer WPC 32006/06 -:16:- allowance and the action of the management in paying some of such operators ALPMs/AEAMs allowance cannot be justified. 11. It is also relevant to note that the above findings of the Tribunal is on the basis of the materials and evidence on record and on the basis of the correct analysis of the provisions of various Settlements referred in its award and if that be so, no interference is warranted with the award, especially, in the light of the decisions of the Apex Court in Calcutta Port Shramik Union v. Calcutta R.T. Assocn. (AIR 1988 SC 2168) and State Bank of India v. K.C.Tharakan {( 2005) 8 SCC 428). In the result, there is no merit in the writ petition and accordingly, the same is dismissed. V.K.MOHANAN, JUDGE kvm/- WPC 32006/06 -:17:- V.K.MOHANAN, J. O.P.No. JUDGMENT Dated:..