TMI Blog2001 (2) TMI 1051X X X X Extracts X X X X X X X X Extracts X X X X ..... be Deposit Collectors Employed in the Banks listed in the Annexure that they are entitled to pay scales, allowances and other service conditions available to regular clerical employees of those banks is justified? If not, to what relief are the workmen concerned entitled and from which date? 4. Before the Tribunal parties lead evidence both oral and documentary. After hearing the parties the Tribunal by its Award dated 22nd December, 1988 held that the Deposit Collectors were workmen of the concerned Bank. The Tribunal then directed as follows: All those Deposit Collectors and Agents who are below the age of 45 years on 3.10.1980 (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 Banks serviced 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 of the Bank. Those who are qualified with 8th Class and below Matriculations shall be considered for absorption as Sub-Staff by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e to the Bank at any time and make the deposits. It was further submitted that there was no qualification or age limit for a person to be engaged as a Deposit Collector and that, in fact, many of the Deposit Collectors were well advanced in age. It was submitted that no disciplinary action could be taken against the Deposit Collectors. It was submitted that all the above mentioned facts showed that there was no relationship of master and servant and that, therefore, these Deposit Collectors were not workmen. 9. Reliance has also been placed on Section 10 of the Banking Regulation Act. The relevant portion of Section 10 reads as follows: 10. Prohibition of employment of managing agents and restrictions on certain forms of employment.- (1) No banking company - (a) shall employ or be managed by managing agent; or (b) shall employ or continue the employment of any person - (i) who is, or at any time has been, adjudicated insolvent, or has suspended payment or has compounded with his creditors, or who is, or has been, convicted by a Criminal Court of an offence involving moral turpitude; or (ii) whose remuneration or part of whose remuneration takes the form of c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Act, either a wide or narrow definition had been given to the term worker . He pointed out that the proviso to Section 10 of the Banking Regulation Act has been operative since 1949. He submitted that in the Industrial Disputes Act the definition of the term worker in Section 2(s) was amended in 1984. He submitted that even in 1984 the Legislature did not think it fit to include in this definition a person who was receiving commission. He submitted that this clearly indicates that persons receiving commission were not meant to be and were not workmen within the meaning of the term as laid down in the Industrial Disputes Act. 13. Mr. P. P. Rao further submitted that if the Deposit Collectors are not workmen, then their entitlement has to be as per their contract or as per the provisions of a statute. He submitted that the Tribunal had no power to change the contract between the parties and/or to impose conditions of service. He submitted that the Tribunal could only have done so, provided it was statutorily permitted or it was so provided in the Contract. He submitted that the gratuity which has been awarded by the Tribunal is neither as per the contract between the part ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of money, which would, if the terms of employment, express or implied, were fulfilled, be payable to a workman in respect of his employment or of work done in such employment, and includes - (i) such allowances (including dearness allowance) as the workman is for the time being entitled to; (ii) the value of any house accommodation, or of supply of light, water, medical attendance or other amenity or of any service or of any concessional supply of foodgrains or other articles; (iii) any travelling concession; (iv) any commission payable on the promotion of sales or business or both; but does not include- (a) any bonus; (b) any contribution paid or payable by the employer to any pension fund or provident fund or for the benefit of the workman under any law for the time being in force; (c) any gratuity payable on the termination of his service; 17. He points out that, under sub-clause (iv) of the above definition, wage includes commission payable on promotion of sales or business or both. He submitted that the commission which was received by Deposit Collectors was for promotion of the business (SIC) the banks, viz. receiving deposits from inve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to work whole day was also not very material. It held that all that was necessary was that the workman was principally employed by that employer. 20. Mr. Sharma also relied upon the case of Dharangadhara Chemical Works Ltd. v. State of Saurashtra reported in (1957)ILLJ477SC . In this case the Appellants were lessees holding a license for the manufacture of salt on certain lands. The salt was manufactured by labourers known as Agarias from rain water that got mixed with saline matter in the soil. The work was seasonal in nature and commenced in October after the rains and continued till June. Thereafter the Agarias left for their own villages and did their own cultivation work. During the season the lands were divided into plots and plots were allotted to the Agarias. Generally the same plot was allotted to the same Agaria every year. After manufacturing of salt the Agarias were paid at the rate of 5 as. 6 pies per maund. At the end of each season the accounts were settled and the Agarias were paid the balance due to them. During the season the Agarias worked with the members of their families and were free to engage extra labour on their own, if they so desired. No hours of wor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was awarding gratuity under the Gratuity Act. He submitted that the Tribunal has powers, dehors the Gratuity Act, to direct payment of Gratuity. He submitted that the Tribunal always has power and jurisdiction to modify conditions of service and, in this case, it has been found by the Tribunal that there was no fixed pay scales, no bonus, no gratuity, no dearness allowance and, therefore, the Tribunal had given the direction, as set out hereinabove, as and by way of a package. He submitted that earlier commission was being paid at a rate of 3.5 per cent by most of the banks. He pointed out that now, over and above the sum of ₹ 7,500/-, the commission had been reduced to 2 per cent. He submitted that to that extent Deposit Collectors were loosing, but as this was part of the package as given by the Tribunal it was being accepted by the Deposit Collectors. He submitted that the directions given by the Tribunal were fair and just and absolutely right. He submitted that the Order of the High Court was correct and this Court should not interfere. 24. Mr. Nageshwar Rao, who appeared for the Appellants in C. A. No. 3356 of 1998, supported Mr. Sharma in all his submissions. He, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the banks by the very next day. They have to then fill in various forms, accounts, registers and pass books. They also have to do such other clerical work as the bank may direct. They are, therefore, accountable to the bank and under the control of the bank. 28. We also see no force in the contention that Section 10 of the Banking Regulations Act prevents employment of persons on commission basis. The proviso to Section 10 makes it clear that commission can be paid to persons who are not in regular employment. Undoubtedly the Deposit Collectors are not regular employees of the Bank. But they nevertheless are workers within the meaning of the term as defined in the Industrial Disputes Act. There is clearly a relationship of master and servant between the Deposit Collectors and the concerned Bank. 29. Mr. Nageshwar Rao is right in his submission that the concession was not binding on his clients. However, what has been conceded has been correctly conceded. No question arose of directing absorption of the Deposit Collectors as regular workmen. No such demand had been made and, therefore, there could have been no such direction. Such directions were beyond the reference. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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