IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 29TH FEBRUARY 2008 / 10TH PHALGUNA 1929 OP.No. 1832 of 1999(R) -------------------------------- PETITIONERS: --------------------- 1. ASSOCIATE BANK OFFICERS ASSOCIATION, (UNIT SBT), REPRESENTED BY ITS ASSISTANT SECRETARY, ERNAKULAM. 2. S.B.T. EMPLOYEES UNION, REPRESENTED BY ITS ZONAL SECRETARY, ERNAKULAM. BY ADV. SRI.P.RAMAKRISHNAN. RESPONDENT: ---------------------- STATE BANK OF TRAVANCORE, REPRESENTED BY GENERAL MANAGER, OPERATIONS, HEAD OFFICE, TRIVANDRUM. BY ADV. SRI.M.PATHROSE MATHAI. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/02/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ORDER ON C.M.P. NO. 3032/1999 IN O.P. NO. 1832/1999-R DISMISSED 29/02/2008. SD/- T.R.RAMACHANDRAN NAIR, JUDGE. APPENDIX PETITIONER'S EXHIBITS : EXT.P.1: COPY OF THE CIRCULAR NO. 44 OF 1998 DTD. 29/10/1998 ISSUED BY RESPONDENT. EXT.P.2: COPY OF THE STAFF CIRCULAR NO. 57 OF 1998 DTD. 30111-1998 OF RESPONDENT. EXT.P.3: COPY OF THE CIRCULAR NO. 3 OF 1999 DTD. 08/01/1999 OF BANK RESPONDENT. RESPONDENT'S EXHIBIT: EXT. R1.A: COPY OF THE ADVICE DTD. 12/11/1998 FROM THE CHIEF MANAGER (P&A). //TRUE COPY// prv. T.R.RAMACHANDRAN NAIR, J. ========================= OP.No.1832 of 1999-R. ========================= Dated this the 29th day of February, 2008. J U D G M E N T The petitioners are the two staff unions of the State Bank of Travancore, the sole respondent herein. The petitioners represent the staff and officers of the State Bank of Travancore and they have filed this original petition in that capacity. The challenge is against Exts.P2 & P3. The short facts are the following:- The officers of the Bank were being paid city compensatory allowance (CCA) and house rent allowance (HRA) and according to the petitioners, these items are covered by long term settlements. Reference is made to the Desai Award wherein areas of the country have been classified for purposes of payment of wages and other benefits. The first bipartite settlement was in 1996 and the second was effective from 1.1.1970. The third one dated 17.9.1984 revised the rates, but according to the petitioners, the basic pattern was followed. The Government of Kerala by OP.No.1832 of 1999-R. -: 2 :- notification dated 14.11.1995 notified certain territorial areas of the State lying in Municipalities and Panchayats as metropolitan areas. The petitioners point out that thereafter the respondent Bank by relying upon the said notification as per Ext.P1 revised HRA and CCA as applicable to various areas. But later by Exts.P2 & P3 the same have been withdrawn. These are under challenge in this original petition. 2. In the said circulars reliance was placed on the advise tendered by the Indian Banks Association as per their letter dated 3.11.1998. It refers to the clarification made by the Director of Census Operations also. It was clarified that the areas of Thiruvananthapuram and Kochi covered under the Government notification regarding the metropolitan centres are not the extension of Urban Agglomeration and it is entirely different from the Urban Agglomeration defined and formed in the 1991 census. This is the reason stated in Ext.P2 to justify the withdrawal of Ext.P1. Later Ext.P3 was issued proposing to effect recoveries in three instalments starting from January, 1999. OP.No.1832 of 1999-R. -: 3 :- 3. The respondents have filed a counter affidavit detailing the circumstances under which they had to withdraw the revised benefits granted by Ext.P1. It is explained that as far as the officers of the respondent Bank are concerned their service conditions were not governed by any settlements. Their conditions of service are governed by the State Bank of Travancore (Officers) Service Regulations framed by the State Bank of India in exercise of its powers under Section 63 of the State Bank of India (Subsidiary Banks) Act. The Desai Award as well as subsequent settlements have used the expression area or place to mean Municipal Corporations and Towns specified as such in the settlements. Actually the workmen category alone are covered by such settlements. The classification of Municipal Corporations, Cities and Towns has been made on the basis of population specifically in the settlement signed by the managements and the unions. Higher HRA and CCA have been fixed in big cities and towns considering the cost of living in those places. Such higher rates cannot be applied in panchayats. It is explained in the OP.No.1832 of 1999-R. -: 4 :- counter affidavit that, the classification of places or areas under any other enactments or for other purposes cannot be imported into the Bipartite Settlements signed under the Industrial Disputes Act. It is therefore pointed out that the notification issued by the Government of Kerala for the specific purpose of Chapter IX(A) of the Constitution of India in exercise of the powers under Article 243P is totally erroneous and unsustainable. In Art.243P metropolitan area is referred to specifically for the purpose of constituting Metropolitan Planning Committee and not for any other purpose. That Committee is to prepare draft development plan for the development of a particular area in the manner laid down in Article 243ZE. Therefore the substantial contention raised is that it was by a mistake that Ext.P1 happened to be issued and soon after the mistake was realised it was withdrawn with effect from 9.11.1998. They have produced as Ext.R1(a) the advice they received in the matter. 4. A reference to Part IX A of the Constitution of India is apposite in this regard. Metropolitan area is defined in Art.243P OP.No.1832 of 1999-R. -: 5 :- (c) which is extracted below: “(c) 'Metropolitan area' means an area having a population of ten lakhs or more, comprised in one or more districts and consisting of two or more Municipalities or Panchayats or other contiguous areas, specified by the Governor by public notification to be Metropolitan area for the purposes of this Part.” The notification thus issued evidently is for the purpose of Part IX A of the Constitution as is evident from the definition clause itself. The local self governments were given more wider responsibilities as per the new constitutional scheme brought out by the Constitution (Seventy Fourth Amendment) Act, 1991. The Municipalities Act and Panchayats Raj Act provide various situations wherein the local self governments are functioning as three different tires. A reference to Art.243ZD and 243ZE would show that separate committees have to be constituted at the District level and for a Metropolitan area for planning. Under Sec.54 of the Municipalities Act the Government shall constitute a Metropolitan Planning Committee in a Metropolitan area to prepare a draft development plan for such area as a whole. The OP.No.1832 of 1999-R. -: 6 :- concept, therefore is evident, that, development plans have to be prepared for such areas. It is clearly envisaged for proper planning of development. These concepts cannot therefore apply to other areas like settlements under the Industrial Disputes Act where areas have already been classified. Petitioners have no case that in such settlements concepts like Metropolitan City had been changed by appropriate amendments, and by incorporating the definitions in Part IX A of the Constitution. Therefore the stand taken in the counter affidavit that the notification issued by the State Government is specifically for the purpose of having a committee for metropolitan planning appears to be correct. It may have no impact on the awards like Desai Award which admittedly provided for constitution of certain areas as cities or municipal areas or panchayats for the purpose of granting allowances. 5. What was attempted by the respondent is to correct a mistake and to effect recovery of the amount paid. This is supported by various decisions of this Court including in Santhakumari v. State of Kerala (2005(4) KLT 649), wherein it OP.No.1832 of 1999-R. -: 7 :- has been held that “unless there is statutory bar in recovering the amount, any amount paid by mistake could be recovered depending upon the facts and circumstances of each case”. 6. The learned counsel for the petitioner further argued that what is attempted by Exts.P2 & P3 is a modification of the conditions of service without issuing any notice to the employees and therefore on that ground itself Exts.P2 & P3 are unsustainable. I cannot accept the said contention for various reasons. Ext.P1 was brought into force based on the notification that was issued by the Government of Kerala dated 14.11.1995 in the Gazette. The territorial areas mentioned in the annexure to the notification thereto are the territorial areas relating to Thiruvananthapuram and Ernakulam Districts. It is based on this notification alone that the revised HRA and CCA was made applicable to such areas based on the yardstick of population. When it was found later that the presumption under which it was issued is not legitimate, the authorities acted quickly by Ext.P2 circular. Apart from this reason no other grounds have been shown to withdraw the benefit. OP.No.1832 of 1999-R. -: 8 :- Therefore, even if a notice is issued and hearing is provided, on the admitted facts no other conclusion is possible. Apart from this there are no other disputed facts which has to be gone into by the authorities concerned. Therefore, if on the admitted facts, only one conclusion is possible, this Court will not issue writ to compel the observance of natural justice. This Court cannot issue a futile writ as held in S.L.Kapoor v. Jagmohan (AIR 1981 SC 136). The dictum laid down in the following paragraph is relevant here: “17. Linked with this question is the question whether the failure to observe natural justice does at all matter if the observance of natural justice would have made no difference, the admitted or indisputable facts speaking for themselves. Where on the admitted or indisputable facts only one conclusion is possible and under the law only one penalty is permissible, the Court may not issue its writ to compel the observance of natural justice, not because it approves the non-observance of natural justice but because Courts do not issue futile writs. But it will be a pernicious principle to apply in other situations where conclusions are controversial, however slightly, and penalties are discretionary.” 7. This Court cannot issue a futile writ in such a situation. Therefore the request of the learned counsel to have a further OP.No.1832 of 1999-R. -: 9 :- hearing in the matter cannot be sustained. For all these reasons the Original Petition is dismissed. 8. As far as the payments already made are concerned, the learned counsel submitted that the officers should not be asked to pay back such amounts. I cannot agree. Since the interim order was in force, the Bank should effect recovery only in easy monthly instalments alone. As far as the officers who have retired from service are concerned, it is upto the Bank to consider that aspect and to see whether recovery can be waived in respect of such persons. The Original Petition is dismissed with the above observation. No costs. T.R.RAMACHANDRAN NAIR, JUDGE. kvs/-