This is post from Mr S.B.C.Karunakaran, Working President of AIBPARC and President of State AIBPARC, Tamil Nadu. He is a practicing lawyer in Madras High Court and a part of think tank in AIBPRC.
D Doraisamy, President, CBROA, TN
Dear Friends,
At the outset, I am giving my comments to clarify the legal position and it does not mean support or opposition to anybody. I am quite aware that our issues are no more on the negotiating table whatever the unions may say in their circular.
I am clarifying the legal position so that no confusion prevails.
As Com Bhinder noted correctly Workmen are covered by ID Act and hence settlements entered with them become legally enforceable the moment they are signed. Officers are not governed by ID Act and hence only Joint Notes are signed which are not legally enforceable but have only moral force. Be that so, we all know that IBA keeps briefing the Govt in private and take instructions from them though the talks covered some old Gen private banks too. To get enforceable right over what is agreed in Joint Note necessary amendments are made to Officers Service Regulations and Pension Regulations.
The above post is oblivious to this fact of Jount Note leading to amendments of Regulations. The effect of not a single Joint Note can be reversed because of amendments carried out accordingly unless the amendment violates the statutory or constitutional right. (Eg reversal of pension at 1616 points DA merger) So IBA rightly conveyed the legal position of Joint Note for officers.
Much hairsplitting is done over IBA calling itself a facilitator and not negotiator. IBA has no legal status of its own to negotiate. It is the mandates given by banks that authorize IBA to hold talks on their behalf with named unions and associations. As IBA is only lending its expertise for negotiation and not negotiating as a principal, IBA says it is only a facilitator and cannot decide on its own. Even assuming court holds that IBA is not competent to negotiate who are we going to negotiate with? - the banks or the Government only! Will it help the cause of negotiation? I will bet not even a penny on it.
IBA has not outsourced its authority to any outsider. It is upto IBA to constitute the committee of negotiators drawn from a few banks. If all banks have to be on the negotiating committee there was no need for them to give a mandate to IBA. IBA only signs the settlement on behalf of banks and nobody else. So there is no sub agent.
There is no law which says that the mandate has to be from all banks else it becomes a truncated mandate and hence invalid. There is no legal compulsion on any bank to give a mandate. Whoever has given a mandate is bound by the negotiation if it leads to a settlement or amendments to regulations based on Joint Note.
As regards, diluting the Charter of demands, one can have grouse but that does not give any legal ground to challenge it so far as there is no violation of statutory or constitutional right. Every bye law of a trade union and as well of apex union authorizes its General Secretary to negotiate with the management. There is no provision or legal requirement of a referendum for any settlement to become effective and enforceable. Such a concept is not known to labour jurisprudence.
Unions have improved the load from a rock bottom to a respectable though not to the expected level. With special allowance reckoning for DA, BP plus DA may not be far behind 7th Central Pay Commission. True, special allowance should have been scrapped, load factor improved further, 5 day week clinched and regulated working hours with over time wages for officers achieved.
Of course for staff in service special allowance with DA or its merger with BP makes no difference but it matters a lot to retirees as special allowance is not reckoned for terminal benefits.
So any writ petition should have challenged not the competence/vires of the negotiating parties but should have challenged the special allowance not being reckoned as being opposed to payment of gratuity Act, Payment of wages Act and service Regulations and Art 14 of the Constitution. The writ petition should have challenged the non publication of formula for pension updation in terms of Reg 35(1) of Pension Regulations. The writ should have challenged different rates for family pension as violative of Art 14 of the Constitution.
Curiously this writ is based on conjectures and fictional rights. The writ rests its case on Code on Wages Act enacted in 2019 for the wage revision effective from 2017 which itself is an anachronism. Secondly the Govt is yet to notify on when the Code will come into force. In my opinion, No writ lies in anticipation of a right that may accrue in future or apprehending denial of that right. This is what the counters by respondents states. Further a comparative classification done between Govt and Bank employees by HR Ministry for the purpose of OBC reservation cannot be taken as classification done by appropriate govt for the purpose of the Code which is yet to take place, rules are yet to be framed and committees to determine floor wages yet to be formed.
Well, in my opinion, above is the legal position.
We have no quarrel over the demand for parity with CG employees. It is a legitimate demand but courts look not into legitimacy of the demand but legal enforceability of the demand.
I do not want to comment on opinion in some quarters that Retirees allow vested interests to fire from their shoulders to frustrate the signing of a settlement. I feel all including the writ petitioners and those supporting then work with sincerity and try various approaches to get justice for retirees. But In their anxiety, none should lose sight of the harm it may cause. My opinion is that stopping a settlement serves nobody’s interest. If at all the settlement falls foul of the Wage Code it can be set right by approaching the courts. We want the settlement to be over so that we get uniform family pension as in RBI and we can focus on how to take forward our other issues on our own.
Thanks.
Wish you all festival greetings . Stay safe and celebrate
SBC Karunkaran
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