BANK EMPLOYEES UNIONversusRAJARSHI SHAHU GOVT. SERVANTS CO-OPERATIVE BANK LTD., KOLHAPUR

                        [2021] 6 S.C.R. 503                             503


                  BANK EMPLOYEES UNION                                  A
                                 v.
            RAJARSHI SHAHU GOVT. SERVANTS
           CO-OPERATIVE BANK LTD., KOLHAPUR
                  (Civil Appeal No. 2328 of 2021)                       B
                           JULY 06, 2021
    [ROHINTON FALI NARIMAN, K. M. JOSEPH AND
                 B. R. GAVAI, JJ.]
       Maharashtra Industrial Relations Act, 1946: s. 38(2) –
                                                                        C
Standing order stipulating the age of retirement of the employees,
applicble to employees of the Co-operative Bank – Locus of
Registered Trade Union to file application u/s. 38(2) for alteration/
modification of the standing order – Held: Original standing order
which mandated 55 years as the age of retirement, was changed by
consent of both employer and employees, to 58 years, twice, by          D
means of Settlements of 2004 and 2010 which culminated in an
award by the Industrial Court – Ministerial duty of implementing
the settlement was on both the employer and the employees –
Application was moved before the Commissioner of Labour by the
Registered Trade Union, which could and should have been joined
                                                                        E
in by the employer – Thus, any technical objection as to a registered
union having no locus to file an application u/s. 38(2), cannot be
accepted – Order passed by the Industrial Court, which was based
on the locus standi of the Registered Trade Union, is set aside, as
also the judgment of the High Court – Locus standi.
                                                                        F
      Allowing the appeal, the Court
      HELD: It is clear that the original standing order which
mandated 55 years as the age of retirement, was changed by
consent of both employer and employees, to 58 years, not just
once, but twice, by means of Settlements of 2004 and 2010,
solemnly entered into under section 18(1) of the Industrial             G
Disputes Act. These settlements were also sanctified by an award
of the Industrial Court. Ultimately, the Ministerial duty of
implementing the settlement was on both the employer and the
employees. It so happened that the appellant moved an application
                                                                        H
                                503
504             SUPREME COURT REPORTS                            [2021] 6 S.C.R.


A     before the Commissioner of Labour. The said application could
      and should have been joined in by the employer, and in this
      backdrop, it is clear that any technical objection as to a registered
      union having no locus to file an application under Section 38(2) of
      the Maharashtra Industrial Relations Act, 1946, cannot be
      accepted. Therefore, the order that has been passed by the
B
      Industrial Court, which was only based on the locus standi of the
      appellant, is set aside and held that the Industrial Court ought to
      have given some teeth to its own Judgment and held that the
      very appeal which was filed before it be dismissed for the very
      good reason that the bank should not be allowed at the stage of
C     implementation of two settlements (culminating in an award)
      solemnly entered into between itself and its employees, to now
      turn around and question the locus standi of the appellant. The
      judgment of the Industrial Court and, consequently, the judgment
      of the High Court is set aside. [Para 8][508-B-F]
D           CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2328
      of 2021
            From the Judgment and Order dated 18.12.2014 of the High Court
      at Bombay in Writ Petition No. 6558 of 2013.
            Colin Gonsalves, Sr. Adv., Ms. Jane Cox, Ms. Aparna Bhat, Ms.
E     Karishma Maria, Advs. for the Appellant.
           Vinay Navare, Sr. Adv., Ms. Gwen Karthika, Ms. Abha R.
      Sharma, Advs. for the Respondent.
            The Judgment of the Court was delivered by
F           R. F. NARIMAN, J.
            1. Leave granted.
            2. The short question that arises in this appeal is as to whether the
      appellant – Registered Trade Union - had locus to prefer an application
      to modify a standing order that applies to the employees of the respondent
G     under Section 38(2) of The Maharashtra Industrial Relations Act, 1946.
      The brief facts necessary in order to dispose of this appeal are as follows:-
              The original standing order with which we are concerned, and
      which stated the age of retirement of the employees of the bank, reads
      as follows :-
H
      BANK EMPLOYEES UNION v. RAJARSHI SHAHU GOVT.                           505
              SERVANTS [R. F. NARIMAN, J.]

        “22(7) Every employee shall retire from service on attaining         A
      the age of 55 years, Extension not exceeding one year at a
      time or three years in all may be given at the discretion of the
      president.”
       3. By two Agreements dated 11.01.2004 and 21.02.2010 which
were settlements under Section 18(1) of the Industrial Disputes Act          B
entered into between the respondent and its employees, it was agreed
vide Clause 16 of the 2004 settlement and Clause 15 of the 2010 settlement
that the retirement age would now be 58 years. A reference was made
under Section 73A of The Bombay Industrial Relations Act (as it was
then styled) to the Industrial Court, which then made an award in terms
of the two settlements entered into. This award was dated 10.03.2010.        C
However, when it was pointed out that formalities under the Maharashtra
Industrial Relations Act in modifying the standing order 22(7) needed to
be gone through in order to implement the two settlements which
culminated in an award, the appellant – Registered Union - filed an
application on behalf of the employees dated 26.04.2011 under Section        D
38(2) of the said Act. Armed with the consent letter from various other
unions dated 04.09.2012, the application was heard by the Additional
Labour Commissioner. The Additional Labour Commissioner, vide his
order dated 25.10.2012, recorded as follows :-
      “As the employees of the said Bank are also employed in other          E
      different local areas of viz. Tasgaon, Kavathe Mahankal,
      Khanapur, Atpadi, Jath, Shirala, Walwa, Miraj, Palus,
      Kadegaon talukas and they are represented by Kolhapur
      District Bank Employees Union, Kolhapur which is the
      representative and approved union for Banking Industry for
      the abovesaid local areas, the said union’s views were obtained        F
      in accordance with the provisions of sec. 39 (1) of the Bombay
      Relations Act, 1946. The said union by their letter dated 04/
      09/2012 conveyed that they have no objection in the matter
      of settlement of alteration to the said Standing Order.
      In accordance with the provisions of section 39 (1) of the             G
      Act, the management of the said Bank was requested to file
      their say in respect of the proposed alteration. The Bank by
      their communication dt. 19/03/2012 communicated their
      various objections objecting the union’s proposed alteration,
      but the management of the Bank could not refute the fact that          H
506            SUPREME COURT REPORTS                          [2021] 6 S.C.R.


A           they have made two settlements dated 11/01/2004 and 21/02/
            2010 wherein the management Bank has agreed to alter the
            retirement age of their employees from 55 to 58.
            As both the parties i.e. the employees through their
            representative unions, and also the management of the said
B           Bank have already mutually made the agreements to effect
            the change in retirement age, I find no difficulty to make the
            alteration to the Standing Order clause No. 22(7) which will
            read as under :-
            Standing Order No. 22 (7) – Every employee shall retire from
C           service on attaining the age of 58 years . Extension not
            exceeding one year at a time or three years in all may be
            given at the discretion of the President.”
             4. However, an appeal was filed by the Bank in November 2012
      against the said order, in which essentially one point was taken up, which
D     was that under Section 38(2) of the Maharashtra Industrial Relations
      Act, only an employee, as defined under the said Act, could apply to the
      Commissioner of Labour for an alteration of a standing order and the
      Registered Union, being separately defined, would therefore have no
      locus to do the same. This appeal was allowed by the Industrial Court,
      on a conspectus of the provisions of the said Act, that the appellant
E     Union would have no locus to approach the Commissioner of Labour
      under Section 38(2) of the Maharashtra Industrial Relations Act, as only
      an employee defined under the said Act would be allowed to do so. In
      addition, the Industrial Court, being troubled about the fact that, by its
      order, the bank would be allowed to resile from the two settlements
F     entered into, the court’s consciencespoke out thus :-
            “10) No doubt, the Appellant Bank had executed an Agreement
            with the Opponent Union and in the said Agreement, it was
            decided to change the age of retirement from 55 years to 58
            years. But, the Appellant Bank has made change in its Standing
G           Orders by moving an application under Section 38(2) of The
            Bombay Industrial Relations Act, 1946. This act of the
            Appellant Bank shows the attitude of the Bank towards its
            employees. On the contrary, it was for the Appellant Bank to
            become a model employer by moving an application under
            Section 38(2) of the said Act for change in the age of retirement
H           of its employees from 55 to 58 years and the same is not done.
      BANK EMPLOYEES UNION v. RAJARSHI SHAHU GOVT.                             507
              SERVANTS [R. F. NARIMAN, J.]

      Undisputedly, the Agreement states about the change in the               A
      age of retirement that does not mean that the law has given
      right to the Union to file an application under Section 38(2)
      of The Bombay Industrial Relations Act, 1946.”
       5. From this order, a writ petition was preferred by the appellant.
By the impugned Judgment dated 18.12.2014, after an exhaustive survey          B
of the said Act, it was found that the Industrial Court’s order could not
be interfered with, and, as a result, the writ petition was dismissed.
       6. Mr. Colin Gonsalves, learned senior counsel appearing on behalf
of the appellant, has taken us through the provisions of the Act in copious
detail and has argued that on merits, his client would certainly have          C
locus, particularly given Section 27A of the said Act, which has not been
viewed by the impugned Judgment in its correct perspective. In any
event, he added that it would be preposterous to allow a party to a
settlement, who, in fact, ratifies the aforesaid settlement, to resile
therefrom at a stage of Ministerial implementation. He, therefore,
submitted that the appeal made against the learned Additional Labour           D
Commissioner’s order to the Industrial Tribunal ought to have been
dismissed on the ground that since either the employer or the employee,
or both, could have gone to the Commissioner of Labour to implement
the two settlements entered into, it would not lie in the mouth of the
employer to now turn around and take up a technical plea of locus when         E
the employer itself could and should have approached the Labour
Commissioner under Section 38 to implement the two settlements
solemnly arrived at between the parties.
       7. Sh. Vinay Navare, learned senior counsel appearing on behalf
of the Bank, supported the Judgment of the Bombay High Court and               F
took us in copious detail through the provisions of the Act and the standing
orders. According to him, once it is seen that the definition of ‘Employee’
and “representative Union” is different, and once it is also seen that
under various other provisions of the Act, more particularly Section 42,
an ‘employee’ and a ‘representative union’ have both been referred to
separately, as opposed to Section 38 which speaks only of an ‘employee’,       G
obviously a representative union would have no locus to move an
application under Section 38, and the Judgment under appeal ought not
to be disturbed at all. He, however, makes a submission that in case this
Court were not to accept his submission, the matter could be sent back
to the Commissioner of Labour for a reconsideration on merits after            H
508                SUPREME COURT REPORTS                         [2021] 6 S.C.R.


A     adding one or more employees, so as to take care of the technical objection
      taken.
             8. After hearing both the learned senior counsel appearing for the
      parties at length, we do not propose to disturb the impugned Judgment
      on merits. Having regard to the facts of this case, it is clear that the
B     original standing order which mandated 55 years as the age of retirement,
      was changed by consent of both employer and employees, to 58 years,
      not just once, but twice, by means of Settlements of 2004 and 2010,
      solemnly entered into under Section 18(1) of the Industrial Disputes Act.
      Not only this, these settlements were also sanctified by an award of the
      Industrial Court dated 10th March, 2010. Ultimately, as correctly argued
C     by Mr. Gonsalves, the Ministerial duty of implementing the settlement
      was on both the employer and the employees. It so happened that the
      appellant moved an application before the Commissioner of Labour. The
      said application could and should have been joined in by the employer,
      and in this backdrop, it would be clear that any technical objection as to
D     a registered union having no locus to file an application under Section
      38(2) of the said Act, cannot be countenanced. We, therefore, set aside
      the order that has been passed by the Industrial Court, which was only
      based on the locus standi of the appellant, and hold that the Industrial
      Court ought to have given some teeth to Paragraph 10 of its own Judgment
      and held that the very appeal which was filed before it be dismissed for
E     the very good reason that the bank should not be allowed at the stage of
      implementation of two settlements (culminating in an award) solemnly
      entered into between itself and its employees, to now turn around and
      question the locus standi of the appellant. On this narrow ground, therefore,
      this appeal is allowed and the Judgment of the Industrial Court dated
F     14th March, 2013 and, consequently, the judgment of the High Court is
      set aside. We reiterate that we are not, in any manner, disturbing the
      High Court Judgment on merits, leaving the question of law decided by
      it open. All consequential benefits, as a result of this Judgment, to the
      employees of the respondent, be given within a period of six months
      from today.
G
              Pending interlocutory application(s), if any, is/are disposed of.


      Nidhi Jain                                                     Appeal allowed.

H