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LPA/2349/2009 7/ 7 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS
PATENT APPEAL No. 2349 of 2009
In
SPECIAL
CIVIL APPLICATION No. 13086 of 2008
With
CIVIL
APPLICATION No. 12888 of 2009
In
LETTERS PATENT APPEAL No. 2349 of 2009
For
Approval and Signature:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
=========================================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To be
referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================================
THE
VALSAD DISTRICT CO-OPERATIVE BANK LTD, THRO' MANAGER - Appellant(s)
Versus
VALSAD
DISTRICT COOPERATIVE BANK EMPLOYEES UNION - Respondent(s)
=========================================================
Appearance
:
MR
BM MANGUKIYA for
the Appellant
MR MUKUL SINHA for the
Respondent
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE BHAGWATI PRASAD
and
HONOURABLE
MR.JUSTICE BANKIM.N.MEHTA
Date
: 4th/02/2010
CAV
JUDGMENT
(Per
: HONOURABLE MR.JUSTICE BHAGWATI PRASAD)
The
present appeal is filed by the Manager of the bank – appellant
being aggrieved by the decision of learned Single Judge of this Court
delivered on 1.4.2009 whereby the challenge to the award dated
20.9.2008 passed by the Industrial Tribunal, Surat, in Reference (IT)
No. 21 of 2007 was not sustained by learned Single Judge and the
Special Civil Application was dismissed. The award was challenged by
the appellant before learned Single Judge on two contentions which
have been noted down by learned Single Judge in paragraph Nos. 5 and
5.1 of the judgement which are reproduced hereinafter:
“para
5 – As mentioned above the award is challenged on two grounds.
One of the contentions is to the effect that in respect of the
petitioner bank which is a “banking company” as defined
under Section 2(bb) of the Industiral Dispute Act, 1947 (hereinafter
referred to as the “I.D. Act”), the appropriate
Government would be the Central Government and not the State
Government and that therefore the reference could not have been made
by an authority under the State Government but ought to have been
made by the authority under Central Government.
Para
5.1 – The second contentions is on the ground that even if it is
assumed that the appropriate Government is State Government and order
of reference was validly made then also the labour Court would not
have jurisdiction to decide the dispute inasmuch as the subject of
transfer is not one of the matters covered under Schedule 2 of the
I.D. Act but is a subject covered under Schedule 5 of the I.D. Act.”
2. Prior
to this litigation there were other litigations in which both the
parties have agreed on the matters being disposed of with certain
directions and learned Single Judge of this Court had disposed of
those proceedings with the following directions:
“(i). The
newly added respondent-Commissioner of Labour shall make reference
to the concerned Industrial Tribunal on receipt of the request for
joint reference as agreed by the parties hereinabove under Section
10(2) of the Industrial Disputes Act, 1947.
(ii). The
appropriate authority i.e. the Commissioner of Labour shall make
reference to the concerned Tribunal for adjudication within a period
of ten days from the date of the receipt of the request of making
joint reference by the respective parties.”
3. Dealing
with the contentions raised by the petitioner, learned Single Judge
in the present lis has rejected the first contention by observing in
paragraph No. 10 which is reproduced as under:
“Thus,
when the orders against which the concerned 7 persons raised the
challenge are orders made under Standing Orders of the petitioner
bank, then the said orders would stand covered under entry No. 1 of
2nd Schedule or in any case, as mentioned earlier, under
the residuary entry i.e. entry No. 6 of second schedule.”
4. Learned
Single Judge has rejected the second contention of the appellant
while giving his findings at paragraph No. 25 which is reproduced
hereinbelow:
“Be
that as it may, so far as the present petition is concerned and the
contention raised by the petitioner bank is concerned, the same
stands settled by the judgement of the Hon’ble Supreme Court in case
of Bharat Co-operative Bank (supra) and by the order passed by the
Division Bench in the reference made in the case of Madhupura
Mercantile Co-operative Bank Limited (supra) relying on said judgment
of the Hon’ble Apex Court. Hence the said contention also fails.”
5. Learned
counsel for the appellant submitted that the contentions which were
limited before learned Single Judge on two counts were without
authority of the litigant and therefore learned Single Judge ought
not to have limited the judgement only on these two counts. We are
not impressed by the argument of learned counsel for the appellant on
this ground because all these questions if at all were required to be
adjudicated they were required to be agitated before learned Single
Judge and not before this Court. We are informed that a review
petition was filed and the same has been rejected. In this background
this argument is not available to learned counsel for the appellant
that the judgement of learned Single Judge could not have been
limited to two grounds only. Learned counsel for the appellant
furthering his arguments on ground No. 1 that the Reference being
made by the State Government which was not an appropriate Government,
hence reference was not maintainable. We are afraid that this
argument is not available to the petitioner firstly on the ground
that it was on his own volition that he took a direction by learned
Single Judge of this Court in earlier proceedings and while the
direction was sought for by the appellant, thoughtful consideration
must have been given as to which is the appropriate Government. In
any case the reasoning given by learned Single Judge in his judgement
based on the finding of the Hon’ble Supreme Court in the matter of
BHARAT COOP. BANK (MUMBAI) LTD. VS. CO.OP BANK EMPLOYEES UNION
reported at 2007(4) SCC 685 that the State Government is the
appropriate Government, does not appear to us in any way vitiated by
any of the niceties which learned counsel for the appellant has tried
to invoke because appropriate bank in a Banking Company which the
appellant is in terms of the definition of Section 5 of the Banking
Regulations Act. We have no doubt in holding that the ratio in the
matter of BHARAT COOP. BANK (MUMBAI) LTD. (supra) has been rightly
applied by learned Single Judge.
6. The
second contention as raised by learned counsel for the appellant is
that the transfer is not subject matter of dispute as covered by
Schedule 2 and Schedule 3 of the Industrial Disputes Act but is a
subject covered by Schedule 5 of the Industrial Disputes Act and
therefore is not liable to be referred. Learned Single Judge has
dealt with this aspect in detail. The argument of learned counsel
for the appellant that this cannot be made the subject matter of
industrial dispute does not appear to us to be based on sound
reasoning because the transfer orders were made under Standing Orders
and as per Second Schedule Clause (1) and Residuary Clause (6) as
has been observed by learned Single Judge, the Reference was validly
made. In any case the appellant has agreed before this Court in
earlier litigation that the Reference can be made on the subject. A
reference in this regard may be made to the case decided by the
Hon’ble Supreme Court in the matters of NATIONAL RADIO CORPORATION
VS. THEIR WORKMEN reported in 1963(6) FLR 8 = 1963(1) LLJ 282 and
G.E. POWER CONTROLS INDIA AND OTEHRS VS. S. LAKSHMIPATHY AND OTHERS
reported (2005) 11 SCC 509 wherein the Hon’ble Supreme Court has
dealt with the question of transfer where the matter was being
referred to the Industrial Tribunal and in none of these cases it has
been held that the Industrial Tribunal had no jurisdiction to
entertain the matters of transfer. In that view of the matter when
the matter of transfer has been adjudicated by the Industrial
Tribunal and the Hon’ble Supreme Court has not said that the Tribunal
has no jurisdiction in the matters of transfer, it cannot be
concluded that in the matters where transfer orders are made under
Standing Orders, the same cannot be made subject matter of the
industrial dispute.
7. In
view of the aforesaid, on both the counts the reasoning given by
learned Single Judge is upheld. The arguments of learned counsel for
the appellant are not accepted and hence rejected. There is no force
in the appeal. Hence the appeal is dismissed.
In
view of disposal of the main matter, the Civil Application does not
survive. It stands disposed of accordingly.
(BHAGWATI RPASAD, J)
(BANKIM N. MEHTA, J)
(pkn)
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