TAPAS KUMAR BINDU Vs. SYNDICATE BANK

JUDGEMENT

(1.) The petitioners who were collecting agent under a scheme for pigmy deposits of the Syndicate Bank were parties to a reference along with similar persons of various other Banks in respect whereof a reference was made. Similar such references, being MP No. 116/84, MP No. 117/84 and MP No. 154/86 all in ID No. 14 of 80 were disposed of by a common award. Initially eleven Banks were involved and subsequently another thirty seven Banks were also included. By a common award, the dispute was resolved. The reference that was made for determination of the dispute reads thus :

(2.) The Tribunal proceeded on the basis that the petitioners, the collecting agents, were claiming regularisation or absorption. But in course of the proceedings which ultimately culminated in a decision of the Apex Court, learned counsel for the workman had pointed out that they had never asked for absorption or regularisation. At the same time the reference was also not for absorption or regularisation. It is specifically pointed out that the demand of the collecting agents were that they were entitled to pay scales, allowances and other service condition available to regular clerical employees of the Bank. Therefore, it is their claim with regard to the pay scales, allowances and other service condition but not of regular absorption. However this could have been confused or misunderstood until clarified by the learned counsel. However, the second clause was that if the demand is not justified, in that event to what relief the workmen concerned were entitled to and from which date?

(3.) Learned counsel for the petitioners points out that initially the petitioners in this writ petition were being paid commission at the rate of 3% which was enhanced to 3.5% subsequently. But this commission was never the subject matter of the reference. It was neither colateral nor incidental question involved in the reference. Even if assuming that it was colateral or incidental question involved, still then it was not directly and substantially in issue and as such the principle of res judicata would not be applicable in the present case. In support of his contention, he had relied on the decision in the case of Sajjahanashin Sayed v. Musa Dadabhai Ummer reported in (2000)3 SCC 350. He then contends that the principle of merger in the present case will not affect the jurisdiction of this Court since the question which was not called upon to be decided by the Tribunal on the reference could not be said to be merged in the Apex Court decision which has modified the order of the Tribunal accepting the modification as made by the Andhra Pradesh High Court and that the question of merger could be distinguished in a given facts and are accepted principle as laid down in Kunhayammed and Others v. The State of Kerala reported in (2000) 6 SCC 359. According to him, this is a case where the distinction laid down in this decision is applicable and the decision of the Apex Court on account of the question of merger will not affect the jurisdiction of this Court since a new cause of action has arisen by reason of the notification issued by the respondents allegedly founded on the decision of the Apex Court which has the effect of curtailing the existing facilities enjoyed by the petitioners. He had contended that on a reference even if some decision is arrived at, the existing benefits cannot be curtailed not the condition of service which is contractual can be changed even by a decision of the Court. In support of his contention he had relied on the decision in Indian Banks Association v. Workmen of Syndicate Bank reported in (2001)3 SCC 36. According to him, the petitioners were getting 3% commission which is being sought to be reduced to 2%. In paragraph 22 of this writ petition, he has given a break up as to how the petitioners' entitlement have since been reduced if the demand is made in terms of the circular impugned in this writ petition. According to him, the Apex Court in the judgment had never intended to reduce in respect of entitlement of the petitioners. Therefore it is open to this Court to examine the situation and come to a conclusion without affecting, altering, modifying or clarifying the order of the Apex Court. According to him, even accepting the decision of the Apex Court as it is, this Court has still jurisdiction to examine the question and can go into it and this case should be decided on affidavits and the interim order should be granted as has been granted by various other Courts to which he had referred to.