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Sunday, August 02, 2015

Views of a former Leader of Officers who is also now a practising Senior Lawyer at Karnataka High Court



....On IBA's "NO CONTRACTUAL OBLIGATION"

"The record note of discussions is wholly without authority of law and neither the IBA nor the constituents of UFBU have any mandate or authority to sign it. Taking up the locus standi of IBA first unnumbered para-1 of record note of discussion states:
“The periodic wage revision exercise based on mandate from member banks cover only wages and service conditions of serving employees.”
The pensioners with whom this opinion is concerned are those who had retired from the services of banks anterior to 1st November 2012. That means on the date the dispute between the UFBU and IBA arose viz., 1-11-2012 none of them were in the services of banks. Therefore, admittedly IBA had no mandate or authority to have discussed the matters concerning those who have retired from the services of banks prior to 1-11-2012. In so far as constituents of UFBU are concerned, since the matter is squarely covered by Section 18 of the Industrial Disputes Act, 1947 the said unions had no right to represent those workmen who ceased to be employees of banks prior to 1-11-2012 and as far as officers trade unions constituents of UFBU are concerned, they also lacked jurisdiction on principles analogous to the said provision of law. Section 18 of the Industrial Disputes Act reads:
“18. Persons on whom settlements and awards are binding. –
(1) A settlement arrived at by agreement between the employer and workman otherwise than in the course of conciliation proceeding shall be binding on the parties to the agreement.
(2) Subject to the provisions of sub-section (3), an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. (3) A settlement arrived at in the course of conciliation proceedings under this Act or an arbitration award in a case where a notification has been issued under sub-section (3-A) of Section 10-A or an award of a Labour Court, Tribunal or National Tribunal which has become enforceable shall be binding on –
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as parties to the dispute, unless the Board, arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, records the opinion that they were so summoned without proper cause;
(c) where a party referred to in clause (a) or clause (b) is an employer, his heirs, successors or assigns in respect of the establishment to which the dispute relates;
(d) where a party referred to in clause (a) or clause (b) is composed of workmen, all persons who were employed in the establishment or part of the establishment, as the case may be, to which the dispute relates on the date of the (d) dispute and all persons who subsequently become employed in that establishment or part.”
A reading of the above provision particularly clause (d) of sub-section (3) shows that neither the settlement nor the joint note nor the record note of discussions bind persons who cease to be in employment of banks prior to 1-11-2012 or at any event before 30th October 2012 on which day charter of demands was presented pertaining to salary revision with effect from 1-11-2012. A trade union can represent only present and future employees and not past employees the status being determined on the date of the dispute. Therefore, the record note of discussions having been signed by two parties who had no authority to sign it is a nullity in law and such a document cannot annul, alter or modify the statutory Pension Regulations. Reason for the law excluding past employees from the right of unions to represent is obvious. What is without mandate is void and unenforceable. Therefore, the record note of discussions has no effect in law insofar as those who have retired from the services of the Banks prior to 01.11.2012 .
Now, about merits of the statements made in the record note of discussions. I have already stated that pension is a statutory right and therefore, there is no need to labour upon absence of contractual relationship set out in the unnumbered first paragraph of record note of discussions. It is settled that though the employer-employee relationship as is normally understood ceases on superannuation, the right to pension as a statutory right and liability of banks to pay pension as a statutory liability arises on retirement and continues after retirement and to that extent in respect of pensioner employer-employee relationship subsists. It is settled further that in respect of services under the State which include nationalized banks as instrumentalities of the State the employer-employee relationship is one of status though it originates from a contract namely application for employment, offer of appointment, its acceptance, and joining service. That way, in so far as nationalized banks are concerned, there is no contractual relationship between the bank and its employees even when they are in service and the relationship is one of statutory status and that statutory status is not taken away by retirement but continues in a different form. In fact even the Pension Regulations recognize this relationship. To cite a few provisions of the Pension Regulations which speak of continuance of relationship – Chapter V dealing with classes of pension ends with Regulation 34 and speaks of eligibility for payment of pension from 1-11-1993 to those who have retired already and the subsequent chapters viz., Chapter-VI dealing with rates of pension, Chapter-VII dealing with family pension, Chapter-VIII dealing with commutation and Chapter-IX dealing with general conditions are pertaining only to this continuance of relationship and incidents thereof after cessation of service. Regulation 42 in particular stipulates that pension is subject to future good conduct. Regulation 43 enables withholding or withdrawal of pension and Regulations 44, 45, 46, 47, 48 and 49 speak of continued limited disciplinary jurisdiction of the bank on pensioners even after their retirement. Regulation 50 restricts right to post-retirement employment of pensioners and makes it subject specifically to prior permission of the Bank. These are enough to say that the statutory relationship between the pensioner and the bank remains after retirement and in fact commences on retirement.
(courtesy:
perumal maruthu)