Dilip Kumar Seth, J.
The Background:
1. In this case the workmen, the Telex Operators, claimed that they were entitled to special allowance at the same rate that was allowed to the employees operating Advanced Ledger Posting Machines (ALPM) and Advanced Electronic Accounting Machines (AEAM). The dispute raised by the Union being referred to the learned Tribunal resulted into an award granting the relief of special allowance at the same rate available to the operators of ALPM and AEAM. By reason of the award, the attempt of the Management to rectify the alleged mistake of allowing the special allowance at the rate available to the other categories of employees operating ALPM and AEAM in terms of the Settlement dated 29th of March, 1987, Annexure 'P-1' at page 3d of the application, to the Telex Operators entitled to the special allowance as contemplated in paragraph 5.2 of Chapter V of the First Bipartite Settlement, was set at naught.
1.1. This was challenged before this Court in a writ petition. The learned Single Judge was pleased to dismiss the writ petition filed by the employer on the ground that on materials the learned Tribunal was justified in granting the relief, particularly, in view of Section 9A of the Industrial Disputes Act, 1947 (1947 Act), which requires giving of notice before any change in the condition of service is effected.
Appellant's contention:
2. Mr. Kalyan Bandopadhyay, learned Counsel, appearing on behalf of the appellant, challenging the said order of the learned Single Judge in appeal, pointed out that this was not a change within the meaning of Section 9A of the 1947 Act, but only a rectification of a mistake related to the rate of special allowance. In case it is paid at a rate higher by mistake, the same cannot mature into a service condition.
2.1. Mr. Bandopadhyay further contended that from the materials on record, it appears that the nature of the duty performed by the Telex Operators are completely different and distinguished from those of the operators of ALPM and AEAM. He had drawn our attention to the various materials in order to bring home his contention. According to him the Telex Operators are entitled to special allowance in terms of paragraph 5.2 Chapter V Part-I clause (v); whereas the Telex Operators, Accounting Machine Operators and IBM and ICT (Hollerith-- Power Samas) Machine Operators were entitled to different rate of special allowance under clauses (viii) and (ix). But these machines were updated by these ALPM and AEAM, which necessitated revision of the allowance of these particular persons operating such machines, which was not found in paragraph 5.2 of the First Bipartite Settlement. According to him, the Telex Operators only operate telex through computers since now telex is linked with the computers. They did not perform any other job except operating telex through computers.
2.2. He also drew our attention to the settlement dated 29th of March, 1987 in order to support his contention. According to him, the finding of the learned Tribunal, since affirmed by the learned Single Judge, are wholly perverse and not in consonance with the settlement arrived at between the parties. The workmen cannot claim any relief beyond the said settlement since binding under Section 18 of the 1947 Act.
Respondents' submission:
3. The learned Counsel for the respondents, on the other hand, contended that there are materials on record and relying on such materials, the learned Tribunal came to a conclusion which a reasonable man could take one way or the other. The Writ Court, therefore, cannot interfere with such a finding when the same is based on materials available on record. Even if this Court is of different opinion, the Writ Court cannot interfere. To support this contention, he relied on Shaw Wallace & Co. Ltd. v. 1st Industrial Tribunal, W.B., 1986 Lab. I.C. 2030 (Para 8), and the decision in State Bank of India v. Union of India and Ors., 1998(2) LLJ 488 (Para 9).
3.1. He contended further that the special allowance having matured into a service condition, it cannot be withdrawn or changed without compliance of Section 9A of the 1947 Act. To support this contention, he relied on the decision in Management of Indian Oil Corporation Ltd. v. Its Workmen, 1975(11) LLJ 319 (SC). According to him, the award of the learned Tribunal is supported by materials to which he had drawn our attention by placing the relevant portion of the award that the workmen were operating as telex linked computers comprising of five units; whereas the Operators of ALPM and AEAM were operating computers with four units. These workmen were also operating the personal computers. Thus, they were discharging additional responsibilities. In view of such materials being present and having been noted, there is no perversity and the question now before the Court is the question of appreciation of the evidence on record, which the Writ Court cannot undertake. To support his contention, he relied on paragraph 17 of the Indian Overseas Bank v. I.O.B. Staff Canteen Workers' Union, 2000 SOL Case No. 239 and Gaya Din v. Hanuman Prasad, 2001(1) SCC 501 (paragraph 14).
3.2. He contended that if in the discharge of duty, one is supposed to shoulder additional responsibilities, in that event, it calls for special allowance or special assistance and if granted, the same cannot be withdrawn. That special allowance is an entitlement of the workmen by reason of the function discharged by the Telex Operators, and as pointed out from the materials on record, they are entitled to the special allowance. To support this contention, he relied on the decision in Central Bank of India Ltd. v. Sisir Kumar Shaw, 1996(1) LLJ 90. Therefore, this appeal should be dismissed.
Finding of facts : Extent of interference by Writ Court:
4. After having heard the learned Counsel for the parties, it appears that the question is not dependant on the finding of facts but on the basis of the materials already on record. It is an admitted position in law that in case there are materials to support a decision and those materials are sufficient to arrive at a conclusion, until it is found to be perverse either in law or on facts, the Writ Court cannot interfere. Similarly, it is equally a settled proposition of law that in case there are materials on the basis of which a reasonable person can come to a conclusion one way or the other, in that event, if the Writ Court is of a different view, even then it cannot interfere with such finding. These are so settled that it requires no citation or precedent. However, the decision cited by the learned Counsel for the respondent in Gaya Din (supra); Management of Indian Oil Corporation (supra) and State Bank of India (supra) well support this proposition, we need not cite any more decision and we accept the contention of the learned Counsel for the respondents.
4.1. This Court can interfere only if the Court comes to a conclusion that the materials are sufficient to persuade the Court that the finding is contrary to law or contrary to the bipartite settlement. In other words, if it comes to a conclusion that the finding arrived at by the learned Tribunal and the learned Single Judge are perverse on the basis of materials placed before the Court, then the Court can interfere. In other words, if the conclusion appears to be in conflict with or diametrically opposed to law or the record (in this case the bipartite settlements) and no reasonable man could come to such a conclusion, then the Court can examine the materials and if finds support to the above proposition, the Court is entitled to interfere on the ground of perversity.
The principle applied : The Bipartite Settlements : Perversity :
5. Keeping the above proposition in mind, we may now examine whether there is any perversity. We may refer to paragraph 5.2 of the Chapter V of First Bipartite Settlement Part-I which we may prefer to quote as under:
'5.2. In supersession of paragraph 5.282 of the Desai Award the special allowances payable to workmen other than the members of the subordinate staff, for duties/responsibilities as listed in Part - I of Appendix 'B' hereto, shall be as follows :
Part I:
Categories of Workmen (In rupees per month)Class of BanksA B C(i) Telephone Operators 8 8 6(ii) Relieving Telephone Operators 4 4 3(iii) Audit Clerks 14 14 12(iv) Comptists 16 16 16(v) Telex Operators 20 20 15(vi) Tellers 27 21 16(vii) Punch Card Operators 23 23 23(viii) Accounting Machine Operators 35 35 35(ix) IBM. ICT (Hollerith - Power Samas) Machine Operators 40 40 40(x) Stenographers 40 40 30(xi) Head Clerks 40 40 30(xii) Asstt. Head Cashiers (above the level of routine clerks) :Units of 5 clerks and above 25 21 14Units of 4 clerks and below 18 16 12(xiii) Cashier-in-Charge of Cash inPay Officers or Branches 27 27 19(xiv) Head Cashiers, Category A :Units of 5 clerks and above 35 27 18Units of 4 clerks and below 27 20 14(xv) Head Cashiers - Category B :Units of 5 clerks and above 40 32 -Units of 4 clerks and below 32 25 -(xvi) Head Cashiers - Category C 45 45 30(xvii) Head Cashiers - Category D 50 45 -(xviii) Head Cashiers -Category E 70 65 55(xix) Special Assistants 75 70 62(xx) Credit Investigators, With regard both to the duties/Opinion Compilers, responsibilities of and allowanceBazar Clerks, Munshis, (if any) paid to these categoriesTranslators, Supplementary/ status quo shall be maintainedLedger Callers in each bank concerned.Note : (1) Head Cashiers - Categories A and C are for banks other than the subsidiary Banks of the State Bank of India.
(2) Head Cashiers - Categories B and D are for the Subsidiary Banks of the State Bank of India
(3) Head Cashiers - Category E is for all banks.' *** *** ****
5.1. From the above agreement, it appears from clause (v) that the Telex Operators, were entitled to the special allowance having relation to the class of Bank they were employed. Similarly, from clauses (viii) and (ix), it appears that the Accounting Machine Operators and IBM, ICT (Hollerith Power Samas) Machine Operators, were entitled to special allowance as specified against the class of the banks in which they were employed respectively. It is apparent that the rate of special allowance of the Telex Operators and those payable to the Accounting Machine Operators and IBM, ICT Machine Operators are different. This part of the bipartite settlement is binding upon the parties by reason of Section 18 of the 1947 Act. Because of this differentiation of the rates, it seems that there was a distinction and difference between the responsibilities and duties performed by the respective employees justifying the differentiation and distinction in the rates since agreed and accepted in the bipartite settlement.
5.2. From the settlement dated 29th of March, 1987, it appears that (page 30 of the application, Annexure 'P-1') this was related to the settlement dated 8th of September, 1983 in relation to two items, namely, Electronic Accounting Machines with memory other than computer also described as Advanced Ledger Posting Machines (ALPM) or Advanced Electronic Accounting Machines (AEAM). The term of settlement indicates that this was entered into without prejudice to any subsisting understanding/agreement/settlement and it was agreed that all the provisions of the settlement dated 8th of September, 1983 would be extended for a further period of three years effective from 8th of September, 1986 subject to the modifications/clarifications, as indicated in the said terms of settlement.
5.3. In order to appreciate the terms of settlement, we may prefer to quote the terms of settlement dated 29th March, 1987 as under:
'Terms of Settlement
Without prejudice to any subsisting understanding/agreement/settlement in any of the banks which are parties to this settlement it is hereby agreed that all the provisions of the Settlement dated 8th September, 1983 shall be extended for a further period of 3 years effective from the 8th September, 1986 subject to the modifications/clarifications as hereunder :
1. Electronic Accounting Machines with memory, other than computers, also described as 'Advanced Ledger Posting Machines' (ALPMs) or 'Advanced Electronic Accounting Machines' (AEAMs) may be installed under Clause 1(1) on the following terms :
Configurations:
(i) Not Exceeding 256 kilobytes
(ii) Not exceeding 16 bits
(iii) Floppy/Winchester Disc
The capacity of the above configurations shall be utilized for the purposes specified in the Settlement.
2. These ALPMs/AEAMs shall be 'stand alone' machines each dedicated to only one of the following functions :
(a) Current Accounts including Overdraft Accounts;
(b) Savings Bank Accounts;
(c) Other Deposit Accounts;
(d) General Ledger Accounts;
(e) Cash Credit and Loan Accounts;
(f) Salary and Pay Roll.
*** *** ***15. (i) The special allowance payable for operation of ALPMs/AEAMs shallbe Rs. 350/- p.m. of which an amount of Rs. 208/- shall rank as 'pay' for thepurpose of Provident Fund.
*** *** ***20. For the purpose of clarity, the applications for which these ALPMs/AEAMs may be utilized are given below :
(a) Savings Bank Accounts
Savings Bank Accounts which are credited as such in terms of the Banking Rules,
(b) Current Accounts including Overdraft Accounts
All Current Accounts and Overdrafts Accounts which are treated as such in terms of the Banking Rules,
(c) Cash Credit and Loan Accounts
All accounts such as cash credit, term loan, packing credit, pre or post-shipment credit, etc., where the credit limits are granted and operated,
(d) Other Deposit Accounts
Term Deposits - both Long Term and Short Term, Cash Certificates, Recurring Deposits or any other deposit accounts as per the scheme of the banks.
(e) Salary & Pay Roll
Payments of all finds of wages and allowances etc., to be made to all categories of employees under Awards, Agreements, Settlements, Service Regulations, Statutes, etc.
(f) General Ledger Accounts
General Ledger, Supplementaries/Day Books/Long Books or by whatever name called concerning Current Accounts including Overdraft, Savings-Bank, Cash Credit, Packing and Pre/Post-Shipment Credits and other Loan Accounts, other Deposit Accounts and Salary and Pay Roll which can be mechanized under the Settlement, but shall not include Cash Book/Clean Cash Book, Registers by whatever name called and Supplementaries/ Day Books/Long Books, etc., related to Departments/ Work e.g. Bills, Drafts and Cash which cannot be mechanized under the Settlement.' *** *** ***
5.4. These terms of the above agreement clearly indicate that this settlement was supplemented to the First Bipartite Settlement, particularly, in view of absence of the difference in relation to the mechanism of computerization dealing with the ALPM and AEAM performing particular kinds of job as provided in paragraph 2 of the said terms of settlement, as elaborated in detail above. At the same time, in terms of paragraph 15, the work done by ALPM and AEAM had also been specified and it also laid down the rate of special allowance available to the operators of ALPM and AEAM. The work to be performed by the operators of ALPM and AEAM had been specified in paragraph 20. This was a settlement in addition to the earlier settlement in relation to a particular class for payment of special allowance, which was earlier covered by clauses (viii) and (ix) of paragraph 5.2 of the First Bipartite Settlement since necessitated modification in view of improved mechanization and computerization standing on different footing. Therefore, these two being different classes and having distinguished the rates of special allowance in the First Bipartite Settlement itself, in the absence of specific clause provided for, the Telex Operators cannot be included within the scope of the bipartite settlement dated 29th of March, 1987.
5.5. Section 18 of the 1947 Act makes a bipartite agreement binding between the parties. As we have seen the First Bipartite Settlement itself had made a distinction and difference between the Telex Operators specified in Part-I clause (v) and Accounting Operators in clause (viii) as well as IBM, ICT (Hollerith -Power Samas) Machine Operators in clause (ix) by including them in different clauses and also differentiated and distinguished in between these two classes, in the matter of granting special allowance at different rates for each of these three categories of employees. Whereas in the agreement dated 29th of March, 1987, all the terms of the First Bipartite Settlement were agreed to be extended subject to the modifications and clarifications specified in the subsequent agreement. From the terms of the subsequent agreement, it is clear and specific that it had dealt with clearly and specifically with regard to the special allowance payable to the operators of ALPM and AEAM other than computers. It is not the case of the Telex Operators that they are operating ALPM or AEAM. Even if they operate telex link through computers, even then their jobs cannot be equated with those operating the ALPM and AEAM, which were other than computers.
5.6. When an agreement is specific and clear and is agreed between the parties, neither the Tribunal nor the Court can substitute the agreement nor can it extend the scope of the agreement. The Tribunal and the Court have to accept the agreement, which is binding between the parties. Any interpretation, which amounts to novation of the agreement or extension of the agreement or modification of the agreement, is wholly outside the jurisdiction of the Tribunal or the Court. The scope of interpretation of the scope of an agreement is limited to the expressions used and the classifications made. Neither the Court nor the Tribunal can erase the distinction or difference between different categories; nor it is within the scope of the Court to undertake job evaluation and substitute its view replacing an existing agreement. The award is to be based within the scope of the agreement and not beyond. In the process of interpretation of an agreement or bipartite settlement, neither the Tribunal nor the Court can substitute something, which is wholly incompatible on the face of it.
5.7. From the materials, as it appears, it does not seem to us that the job performed by the Telex Operators operating telex link through computers can be equated with that of the operators and ALPM and AEAM, which is, admittedly, other than computer undertaking different kinds of job, requiring a kind of expertise in respect of accounting, which is far more complicated than the operation of telex linked computers. In any event it is not for the Tribunal or the Court to undertake the exercise of job evaluation in order to substitute a bipartite settlement and include a category, which is distinct and different from the categories in respect of whom the modification was agreed in the bipartite settlement dated 29th March, 1987.
5.8. It may be that the Telex Operators are now operating telex machines through computers. But from paragraph 1 of the settlement, it appears that this relates to electronic machines with memory, other than computers, described as ALPM and AEAM. Therefore, the operation of computers will not entitle a person operating such computers to come within the purview of the settlement dated 29th March, 1987. Even if the computer may comprise of five units, the Telex Operator is supposed to operate the telex link of the computer only. He is not supposed to operate the ALPM or AEAM. It further appears that the function discharged by the operators of ALPM or AEAM, specified in the settlement does not include the function of telex operation even if operated through telex link of the computer, which is completely different from operation of ALPM and AEAM. It is abundantly clear that operation of ALPM and AEAM involves the kind of job specified in paragraph 2 of the said settlement dated 29th March, 1987 which is altogether different from operation of telex link through computers. By no stretch of imagination the two kinds of jobs can be equated on the face of terms contained in the settlement itself.
Conclusion:
6. As discussed above, we do not think that there is any material to hold that the Telex Operators were performing the same duties and discharging the same or equal functions and responsibilities as those operating ALPM and AEAM which was much more complicated than operating telex. Even if the Telex Operators were performing their duties through computers, they were dealing with the telex link of the computers. No computer can exist without the keyboard or CPU or the monitor. It is a compact unit consisting of different machines for different purposes. Operation of the computers normally done by the Telex Operators involved the telex link of the computers. Therefore, it does not mean that they were discharging additional liability equal to those of the operators of ALPM or AEAM. Thus, from the materials on record, it appears that the inference drawn on the basis of the materials placed were wholly perverse and no reasonable man could come to such decision that the duties and the responsibilities discharged by Telex Operators were similar to those operating ALPM and AEAM. On facts, we find that the finding is perverse and, therefore, cannot be sustained, and the Writ Court can interfere in such situation.
6.1. That the petitioners were discharging additional duties for which they were entitled to special allowance is not disputed and they were getting the special allowance available to them in terms of paragraph 5.2 of the First Bipartite Settlement, which could not be overlooked and thrown away. So long as paragraph 5.2 of the First Bipartite Settlement remains operative, it remains binding upon the parties and the Court cannot hold otherwise than what is provided in the First Bipartite Settlement itself, when the modification or clarification contained in the Settlement dated 29th March, 1987 are in addition without affecting the First Bipartite Settlement and deals with those operating machines with memory other than computers i.e., ALPM and AEAM.
Section 9A: Whether applicable :
7. It is alleged that Section 9A would be applicable in order to withdraw the allowance already permitted. Admittedly, as discussed above, the Telex Operators were not entitled to similar rate of special allowance payable to the operators of ALPM and AEAM. If by mistake the same was paid, the excess amount so paid, over and above that has been specified in paragraph 5.2 of the First Bipartite Settlement was necessarily to be recovered. Payment in excess by mistake could not mature into a right or service condition. Therefore, this was not a case where Section 9A could be attracted since it would not be an attempt to affect the service condition; it was only a rectification of the mistake.
7.1. Another point was raised that once an amount is paid, the same cannot be recovered. We do not think that such proposition can be sustained. Since such amount was paid by mistake, it could be recovered. But before recovery, an opportunity of hearing was to be given and it could be recovered in suitable instalments, which the authority should do after hearing the Union. But, in this case, the question having been dealt with by this Court and there having been a finding, it is only the question of fixing the instalment, which is material. The hearing should be confined only to the number of instalments in which the excess amount is to be recovered, the rest of the order would be governed by this order.
Order:
8. For all these reasons, we are unable to sustain the order passed by the learned Single Judge and the learned Tribunal. We, therefore, set aside the order of the learned Single Judge and modify the award passed by the learned Tribunal to the extent indicated in this judgment and order. However, we make it clear that the Telex Operators will be entitled to the special allowance available to them in terms of paragraph 5.2 as prevailing on the date when the dispute was raised as modified from time to time and available from the respective dates till date.
8.1. The recovery shall be made in terms of para 7.1 above.
8.2. The appeal, thus, stands allowed.
8.3. There will, however, be no order as to costs.
9. Urgent xerox certified copy of this order, if applied for, be given to the parties on priority basis.
Soumitra Pal, J.
10. I agree.