Judgment:
S.S. Saron, J.
1. This order will dispose of two writ petitions, i.e., C.W.P. No. 13524 of 2001 titled Manjeet Singh and Anr. v. Punjab National Bank and Ors. and C.W.P. No. 18792 of 2002 titled Mandip Gujral and Anr. v. Andhra Bank and Anr. as they raise common questions of law and facts.
2. The two petitioners in C.W.P. No. 13524 of 2001 titled Manjeet Singh and Anr. v. Punjab National Bank and Ors. were appointed as Pygmy Deposit Collectors in the then New Bank of India, Talwara Branch, Talwara for making collections under the Pygmy Deposit Collection Scheme (hereinafter referred to as the Scheme). The then New Bank of India was merged into the Punjab National Bank vide notification, dated September 4, 1993, issued by the Government of India in consultation with the Reserve Bank of India under Section 9 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980. The petitioners who had been working as Pygmy Deposit Collectors since 1979 in the then New Bank of India after the merger in 1993 continued to work as such with the Punjab National Bank. They also continued to be paid the same commission, i.e., 3.5 per cent on their collections which they were getting while working with the New Bank of India. However, a question arose whether to issue fresh appointment to the Pygmy Deposit Collectors as and when the scheme is also to be introduced in other branches of the bank. A clarification was given by the Zonal Office, Ludhiana, respondent No. 1, on September 21, 1993 that the Pygmy Deposit Scheme was almost the same as mini deposit scheme and therefore, in the branches where this scheme had already been implemented it should be allowed to continue and that no fresh appointment of mini deposit collector was to be made. The petitioners, 'except for the aforesaid commission at the rate of 3.5 per cent, were not paid any fixed pay in the regular scale, bonus, gratuity, dearness allowance etc. The respondent Punjab National Bank was taking steps to reduce the commission on the amount collected for the scheme from 3.5 per cent to 2.5 per cent. The petitioners, therefore submitted representation, dated June 12, 2000, and it was requested to review the above scheme and the petitioners be allowed to keep the collection of Rs. 100 per day per account as was already in force in the bank since 1993 after the merger of the earlier New Bank of India with the Punjab National Bank. This representation was followed by another representation, dated July 23, 2000. The respondent No. 3 Senior Manager, Punjab National Bank, Talwara Branch, vide his letter dated June 16, 2000, favourably recommended to the effect that mini deposit agents were quite helpful in loan recoveries specially in NPA accounts and that they were bringing in lakhs of rupees in cash deposits. It was requested to allow them commission at the rate of Rs. 100 per day per account. This was followed by another letter, dated August 21, 2000, favouring continuation of the scheme and the payment of commission. The petitioners represented against the lowering of the commission from 3.5 per cent to 2 per cent. However, they were not released regular commission at the rate of 3.5 per cent for the months of June and July 2001. The respondents also decided to effect recoveries from April 1, 2001 and further disallowed them to collect Rs. 100 per day per account which they had been doing for the last more than two decades and instead introduced the collection of Rs. 30 per day per account. The petitioners accordingly served a legal notice, dated August 12, 2001, stating that the action of the authorities in not releasing their commission at the rate of 3.5 per cent despite the fact that they had been performing all regular duties is patently arbitrary and unjust and against the principles of natural justice. The same was not responded to and accordingly the petitioners have filed the present petition, seeking quashing of the orders, dated June 21, 2001, whereby the commission has been reduced from 3.5 per cent to 2 per cent.
3. The petitioners in the case C.W.P. No. 18792 of 2001 titled Mandip Gujral v. Andhra Bank and Ors. were appointed as commission agents in September 1977 and October 1978 by respondent No. 2 Chief Manager, Andhra Bank, Sector 17, Chandigarh. The action of the said respondent No. 2 was confirmed by the respondent Andhra Bank vide letters dated November 18, 1977 and November 2, 1978. The petitioners therein were getting 3 per cent commission as agents under the scheme since 1977-78 i. e. from the date of their appointment. Vide letter, dated August 31, 2001, they were intimated by the respondent Andhra Bank that they would be paid incentive/remuneration at 2 per cent and that recovery would be made with effect from April 1, 2001 pending calculation of arrears/recoveries. The said decision of reducing the incentive/ remuneration was stated to be as per decision of the award of the Industrial Tribunal and the judgment of the Hon'ble Supreme Court. The petitioners represented on October 5, 2001 and requested the Chief Manager, Andhra Bank respondent No. 2 not to recover the so-called excess amount. The respondent No. 2 Chief Manager, Andhra bank wrote a letter, dated October 12, 2001, intimating the respondent No. i Andhra Bank that from April 1, 2001 to August 31, 2001 amount of Rs. 38,385 and Rs, 57,379 as difference of 1 per cent (i. e. 3 per cent minus 2 per cent) is to be recovered from the respective petitioners in C.W.P. No. 18792 of 2001. No incentive/remuneration was paid to the petitioners for the months of September and October, 2001. They, therefore, submitted a representation mentioning therein that they were paid commission at the rate of 3 per cent of the amount calculated under the daily deposit scheme and without prejudice to the decision of the negotiations between their association and the management they requested to recover the excess amount in 12 monthly equal instalments so that they could get regular commission. It was also submitted that they had not been paid their commission/ remuneration without any justifiable reasons and that in similar case of commission agents of Punjab National Bank, this Court vide order, dated September 4, 2001, in C.W.P. No. 13524 of 2001 had stayed the recovery to be effected from the commission agents. The respondent No. 2, Chief Manager, Andhra Bank, again wrote a letter, dated November 6, 2001, to respondent No. 1 informing the latter that commission payable to the petitioners with effect from September 2001, had not been paid. However, no reply or clarification was received. Therefore, the present petition for quashing order, dated August 31, 2001, whereby it was decided to reduce the remuneration by way of commission from 3 per cent to 2 per cent on the amount collected and also for directing the respondent authorities to pay the same commission at 3 per cent as per terms of their appointment and the policy scheme in existence for the last more than two decades.
4. Notice in the cases was issued. The respondents No. 1 to 3 in C.W.P. No. 13524 of 2001 titled Manjeet Singh v. Punjab National Bank filed their-written statement in which it is stated that the respondent Punjab National Bank had entered into an agreement with certain persons for canvassing deposits from the customers. Copy of the specimen agreement entered into between the respondent Punjab National Bank and such persons has been placed on record as Annexure R1. The persons with whom contract had been entered into by the respondent - Punjab National Bank raised an industrial dispute with regard to terms and conditions of the agreement entered into between them and the bank. The said dispute was referred to the Industrial Tribunal, Hyderabad and the Tribunal vide its award, dated December 22, 1988, held that the deposit collectors are workmen. Some writ petitions were filed by the various banks including the Indian Bank Association before the Hon'ble Andhra Pradesh High Court at Hyderabad challenging the said award of the Tribunal. The writ petitions were disposed of by the Hon'ble High Court vide its order, dated March 20, 1997. Before, the High Court of Andhra Pradesh it was conceded by the workmen that relief of being absorbed as regular staff of the I banks in clerical cadre was not available to be granted. On this concession the High Court set aside the directions of the Tribunal to absorb the deposit collectors as regular staff. However, the High Court upheld the other directions of the Tribunal regarding payment of full back- wages, conveyance allowance, gratuity etc. This matter was taken up to the Hon'ble Supreme Court which dismissed the appeal of the banks and affirmed the order of the Hon'ble Andhra Pradesh High Court on February 13, 2001 in the case of Indian Banks Association v. Workmen of Syndicate Bank and Ors. 2001-I-LLJ-1045 (SC). Therefore, it is stated that on account of the finality having been attained in the litigation the position with regard to the status of mini deposit collectors in view of the above decision of the Hon'ble Supreme Court, the petitioners cannot claim any relief.
5. We have heard Sri Gopal Mahajan, advocate, for the petitioners and Sri G.S. Bajwa, advocate for the respondent Punjab National Bank in C.W.P. No. 13524 of 2001 and Sri A.P. Jagga, advocate, for the respondent-Andhra Bank in C.W.P. No. 18792 of 2001 and with their assistance gone through the records of the case.
6. The learned counsel appearing for the petitioners has contended that the petitioners were not parties to the litigation arising out of the award of the Industrial Tribunal, Hyderabad which culminated in the judgment, dated February 13, 2001, of the Hon'ble Supreme Court in Indian Banks Association case (supra) and therefore, no decision prejudice to the rights of the petitioners affecting their civil rights could be taken in which they were not parties. It is also contended that the management of the Syndicate Bank which was contesting the case and was also party in the Supreme Court in Indian Banks Association case (supra) had clarified vide its letter, dated May 26, 2001, that the procedure followed prior to the Supreme Court judgment should continue for payment of commission to the Pygmy Agents and thus the said management had not taken any decision prejudicial to their employees working as Pygmy Deposit Collectors by reducing their commission. In this view the petitioners are entitled to be given the same commission as they were being given earlier.
7. On the other hand, learned counsel appearing for the respondents-banks have contended that the matter has been decided up to the highest Court and that the bank is only implementing the decisions of the Courts and that the petitioners have no right for the continuation of payment of commission at the rate of 3.5 per cent or 3 per cent as the case may be. Therefore, it is contended that the writ petition is not maintainable and merits dismissal.
8. In order to appreciate the respective contentions it may be noticed that the Pygmy Deposit Collection Scheme was introduced in terms of Section 10(b) of Banking Regulation Act, 1980, in the nationalised banks to encourage the common man to make small and regular deposit. The Pygmy deposit collectors under the scheme were allowed commission at the rate of 3.5 per cent or 3 per cent, as the case may be, on the collection made by them. The respective petitioners in the cases were getting this commission from the banks on the amount collected from the customers. There was no restriction on the collection or the number of customers from which collections could be made. This scheme became popular as the banks also got lucrative business.
9. There was a dispute going on between Pygmy/mini deposit collectors and the banks for regularisation of the services of such collectors. The said dispute was referred on October 3, 1980 by the Government of India for adjudication by the Industrial Tribunal, Hyderabad on the point whether demand of commission agents or deposit collectors employed in the banks were entitled to pay scale and other service conditions available to regular clerical employees of those banks. The Industrial Tribunal, Hyderabad vide its award, dated December 22, 1988, held that Pygmy/mini deposit collectors are workmen and they should be considered for regular absorption. The following directions of the award, dated December 22, 1988, of the Industrial Tribunal are apposite:
'All those deposit collectors and agents who are below the age of 45 years on October 3, 1980 (the date of the first reference of this industrial dispute) shall be considered for regular absorption for the post of clerks and cashiers if they are matriculates and above including qualified graduates and post graduates. They may be taken to bank's services as regular employees if they pass the qualifying examinations conducted by the banks. Those who are absorbed shall be treated on par with regular clerical employees or the bank. Those who are qualified with eighth class and below matriculation shall be considered for absorption as sub-staff by conducting qualifying examinations.
As regards the deposit collectors and agents who are above 45 years of age on the date of October 3, 1980 and also those who are unwilling to be absorbed in regular banks' service, they shall be paid the full back wages of Rs. 750.00 per month linked with minimum deposit of Rs. 7,500.00 per month and they should be paid incentive remuneration at 2 per cent for collection of over and above Rs. 7,500.00 per month and they should also pay uniform conveyance of Rs. 50 per month for deposit of less than Rs. 10,000.00, Rs. 100.00 per month for, deposits of more than Rs. 10,000.00 up to or above Rs. 30,000.00 per month they should be paid gratuity of 15 days' commission for each year of service rendered'.
Against the abovesaid award writ petitions, were filed by various banks and the Indian Banks Association before the Hon'ble Andhra Pradesh High Court, which were disposed of vide judgment, dated March 20, 1997. As already noticed that before the High Court of Andhra Pradesh it was conceded by the workmen that relief of being absorbed as regular staff of the banks in clerical cadre was not available to be granted. On this concession the High Court set aside the directions of the Tribunal to absorb the deposit collectors as regular staff. However, the High Court upheld the other directions of the Tribunal regarding payment of full back wages, conveyance allowance, gratuity etc.
10. This matter was taken up to the Hon'ble Supreme Court which dismissed the appeal of the Banks and affirmed the order of the Hon'ble Andhra Pradesh High Court on February 13, 2001 in the Indian Banks Association case (supra). It was held by the Hon'ble Supreme Court that deposit collectors are not regular employees of the bank but they nevertheless are workers within the meaning of the terms as defined in the Industrial Disputes Act and that there is a clear relationship of master and servant between the deposit collectors and the concerned banks.
11. The case of the petitioners is that they were not parties to the said litigation. However, the impugned letter, dated June 21, 2001 (Annexure P9) in C.W.P. No. 13524 of 2001 and letter dated August 31, 2001 (Annexure P6 Colly.) in C.W.P. No. 18792 of 2001 was issued by the respective banks stating that they are to be paid commission according to the award of the Industrial Tribunal, Hyderabad, dated December 22, 1988.
12. It is a matter of record that the petitioners Pygmy Deposit Collectors had executed a Bond, dated October 11, 1994 (Annexure R1) in C.W.P. No. 13524 of 2001 wherein the Punjab National Bank had agreed to allow the mini deposit collectors to collect mini deposits of the customers of the bank on his executing a bond in favour of the bank along with two sureties for faithful, honest, diligent performance of all such duties as may be required. The executant and the surety had agreed to indemnify the bank in case it suffers any liabilities arising under the said agreement.
13. It is not in dispute that earlier the petitioners and other Pygmy/Mini Deposit Collectors were given commission to the extent of 3.5 per cent by the Punjab National Bank and to the extent of 3 per cent by the Andhra Bank which has now been reduced to 2 per cent over and above the collection of Rs. 75,000 per month. It was observed by the Hon'ble Supreme Court in Indian Banks Association case (supra), that from Section 2(rr) of the Industrial Disputes Act, the commission received by deposit collectors is nothing else but wages, which is dependent on the productivity. This commission is paid for promoting the business of the various banks. Besides, it was not accepted by the Hon'ble Supreme Court that the banks have no control over the deposit collectors. It was observed that undoubtedly the deposit collectors are free to regulate their own hours of work but that is because of the nature of the work itself and that it would be impossible to fix working hours for such deposit collectors because they have to go to various depositors. However, there is control inasmuch as the deposit collectors have to bring the collections and deposit the same in the banks by the very next day. Besides, it was observed that they also have to do such other clerical work as the bank may direct and therefore, they were held accountable to the bank and under its control. The plea with regard to absorption of such deposit collectors was declined.
14. Keeping in view the above position, it may be noticed that admittedly the petitioners were not parties to the litigation which culminated in the Indian Banks Association case (supra). Besides, there is no direction by the Hon'ble Supreme Court to effect past recovery. Therefore, it is wholly iniquitous on the part of the banks to effect recovery or the past. It is not disputed that the deposit collectors had been getting 3.5 per cent or 3 per cent commission on the deposits they got and this commission was being paid for the last two decades. There has been no misrepresentation on the part of the petitioners and neither is any such misrepresentation pleaded by the banks. In the case of Sahib Ram v. State of Haryana and Ors. 1995 (1) SCC 18 the Hon'ble Supreme Court in a case where revised salary had been paid to a Librarian who did not have the required educational qualifications ordered the amount paid till date of the judgment not to be recovered as there was no misrepresentation on the part of the Librarian and the Principal of the Institute had erred in granting him the relaxation which resulted in the payment of salary on revised scales to which he was not entitled. Therefore, the action of the respondents-banks in the two cases in ordering recovery of past commission paid to the petitioners is without any basis and is accordingly quashed.
15. In so far as the future payment of commission is concerned, as already noticed above, the petitioners in the two cases were not parties to the litigation which resulted in the judgment in Indian Banks Association case (supra). Therefore, the action in changing the rate of commission does affect their civil rights under the law. This necessarily warrants that the principles of natural justice are complied with. It is not a case where the petitioners have been dormant. Rather they have been making the representations and agitating their claims with the authorities. There has been a violation of the rules of natural justice. Therefore, this Court in the totality of the circumstances and keeping in view the fact pleaded by the petitioners that the management of the Syndicate Bank (which was contesting the case in the Supreme Court in Indian Banks Association case) had clarified vide its letter, dated May 26, 2001, that the procedure followed prior to the Supreme Court judgment should continue for payment of commission to the Pygmy Agents and thus the said management had not taken any decision prejudicial to their employees working as Pygmy Deposit Collectors by reducing their commission, is to see that the petitioners were given an opportunity to plead this before the authorities concerned and whether a fair hearing to the query raised by the banks was given.
16. It is well known that while applying the rule of audi alteram partem which is the primary principle of natural justice, the Court must always bear in mind the ultimate and overriding objective underlying the said rule is to ensure that a fair hearing has been given and to ensure that there is no failure of justice. It is this objective which guides the Courts in applying the rules to varying situations. Admittedly the petitioners in the respective petitions were not heard or given a fair opportunity to make their submissions on the matter of reduction of commission. In the absence of fair hearing, the action on the part of the respondents-banks is improper.
17. Consequently, the writ petitions are disposed of with a direction that the impugned orders to the extent recovery from back date has been ordered, are quashed and for future change in the rates of commission payable to the petitioners in the two cases shall be fixed in accordance with law and after giving the petitioners in both the cases an opportunity of being heard and making their submissions for the payment of commission. There shall, however, be no order as to costs.