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U.P. Bank Employees Federation Vs. Union of India (Uoi) and anr. - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtAllahabad High Court
Decided On
Case NumberC.M.W.P. No. 45884/1992
Judge
Reported in[2000(84)FLR24]; (2001)IIILLJ449All; (1999)2UPLBEC905
ActsIndustrial Disputes Act, 1947 - Sections 2A and 10
AppellantU.P. Bank Employees Federation
RespondentUnion of India (Uoi) and anr.
Appellant AdvocateMahima Maurya, Adv.
Respondent AdvocateNaveen Sinha, Adv.
Cases ReferredState of Madras v. C.P. Sarathy
Excerpt:
- land acquisition act, 1894 [c.a. no. 1/1894]. section 4; [sushil harkauli, s.k. singh & krishna murari, jj] acquisition of land held, court cannot issue a writ of mandamus directing the state authorities to acquire a particular land. land acquisition is not purely ministerial act to be performed by executive no direction in nature of mandamus whether interim or final can be issued by court under article 226 necessarily to acquire particular land in public interest. land acquisition is not a purely ministerial act to be performed by the executive and therefore, no mandamus can be issued by the court in exercise of its power under article 226 of the constitution, whether suo motu or otherwise, whether in public interest litigation or otherwise directing acquisition of land under.....orderd.k. seth, j.1. as prayed for by ms. maurya, leave is granted to correct the prayer (i) to the extent annexures 5 to 26 instead of annexures 5 to 21. she will incorporate the correction in the course of today.2. u.p. bank employees' federation, a registered trade union under the indian trade unions act, 1926 has moved this writ petition seeking a mandamus commanding the state government to refer the disputes in respect of the services of the workmen mentioned in the government orders contained in annexures 5 to 26.3. the brief facts giving rise to the present case was that the respondent bank being state bank of bikaner and jaipur employed concerned workmen for a period of 80 days purely on temporary measure and did not permit them to continue on the expiry of 80 days or lesser.....
Judgment:
ORDER

D.K. Seth, J.

1. As prayed for by Ms. Maurya, leave is granted to correct the prayer (i) to the extent Annexures 5 to 26 instead of Annexures 5 to 21. She will incorporate the correction in the course of today.

2. U.P. Bank Employees' Federation, a registered trade union under the Indian Trade Unions Act, 1926 has moved this writ petition seeking a mandamus commanding the State Government to refer the disputes in respect of the services of the workmen mentioned in the Government Orders contained in Annexures 5 to 26.

3. The brief facts giving rise to the present case was that the respondent Bank being State Bank of Bikaner and Jaipur employed concerned workmen for a period of 80 days purely on temporary measure and did not permit them to continue on the expiry of 80 days or lesser period. This order of termination/ retrenchment, as the case may be has since been sought to be made foundation of a dispute under Section 2-A of the Industrial Disputes Act by the individual workman, whose references were rejected by the orders contained in Annexures 5 to 26. This reference had since been refused by the State Government in exercise of power under Section 10 of the said Act on the ground that the employer Bank had assured that they would be giving one time opportunity to those employees who had served for less than 80 days to be absorbed through a selection process by the Bank. All the references sought by each of the individual workmen who are identically situated, were refused on similar or identical grounds. Admittedly, the individual workmen had not come up against the said order. It is the union who has sought to espouse the cause of those workmen claiming them to be members of the Union through this writ petition seeking the relief as mentioned above.

4. Mr. Naveen Sinha, learned counsel for the respondent No. 2 Bank has raised a preliminary objection to the extent that the union could not have espoused the cause of the workmen since the dispute was never sought to be raised by the union under Section (sic). Individual workmen having sought a reference under Section 2-A it was not necessary that the union should be a party to it and that the union having been nowhere connected with the reference cannot now take up the cause of the workmen when the workmen themselves have not come forward. In fact the present reference sought for by the union is a camouflage and wholly academic in nature. The union normally represents the members of the industry whereas an individual workman who was involved in the present case not being member of the Staff of the Bank by way of their casual service for less than 80 days, cannot be a member of the union and as such union cannot take up their causes. Therefore, according to him this writ petition is not maintainable.

5. Ms. Mahima Maurya, learned counsel for the petitioner had resisted the said objection on the ground that the concept of class action on representative litigation as understood in ordinary common law, is not attracted or available in respect of a dispute under the Industrial Disputes Act where class action or litigation has been recognized through the definition of Industrial Disputes Act requiring a dispute between the workmen being a body of employees. It does not require any other necessity. Then again the Industrial Disputes Act, in its definition under Section 2-A has included an individual dispute as an industrial dispute notwithstanding the fact that the same may not be espoused by a body of workmen or union. Therefore, it is permissible for a union to espouse the cause of individual workman collectively. According to her, in order to confront the mighty employer, the poor employees may not muster sufficient resources to withstand the onslaught of the powerful employer and in such circumstances it is open to the union to come to the rescue and espouse their cause collectively, a concept which has since been well developed under the Industrial jurisprudence. It is necessary that in order to be a member of the union, one has to be in permanent employment. It is the relation of employer and employee which is material to become a member of a particular union concerning a particular industry. It is not necessary that such relation is to be qualified through permanency of employment or any other qualification. Since there is a relation of employer and employee even for a brief period, it is open to the union to take up the cause of such employees who may seek shelter under the canopy of the union.

6. The preliminary objection was also supported by Mr. Sihna through his elaborated arguments. The question involves being well crystalised in the simplicity of the approach of both the learned counsel, it was thought fit that the matter should also be heard on merits and be decided together. Accordingly, both the counsel had addressed the Court on merits as well.

7. On merits, Ms. Maurya submitted that the reference was refused on the ground that the employer had assured absorption of the employees and that in that view of the matter, it was not expedient to refer the dispute since the employer is about to issue a notice pursuant to such assurance. According to her, this is wholly an extraneous consideration. The question of reference is to be confined on the basis of the failure report of the conciliator. If the proceeding of conciliation consists of such materials, the same cannot form foundation for refusal to refer since it would amount to entering into the merits of the dispute. The authority under Section 10 has to confine itself only, to the question of existence of the dispute and in that to its expediency having regard to the facts and circumstances of the case. In the facts and circumstances of the present case, there was no material to show that the referring authority could come to a conclusion about the expediency to the extent that such assurance would ensure to the benefit of the individual employees. According to her, the scope of such exercise is very limited since the referring authority. did not discharge any judicial or quasi- judicial function in the matter of reference. While discharging the function under Section 10 the referring authority in fact discharges administrative function and it cannot pre-judge the issues with regard to the merits of the dispute. On these grounds, she claims that this writ petition should be allowed.

8. She had further contended that policy of engaging casual workmen or labourer staff for a period less than 90 days is in fact unfair labour policy perpetuated by the employer which gives right to the union to raise a dispute with regard to such unfair labour policy of engaging casual employees for less than 80 days and such a dispute in itself is sufficient for the authority under Section 10 to formulate an opinion that a dispute exists and it is expedient to refer the same since such a dispute even if does not exist could be anticipated since it might have repercussions on the whole society by reason of the apprehension that in case the apprehended dispute surfacing then the union will resort to strike or other method of industrial bargain having a great impute in the banking industry and the whole society itself. Therefore, the gravity of the situation was sufficient to form an opinion with regard to the expediency of reference. Thus the authority under Section 10 had failed to discharge its obligation cast upon it under Section 10 of the said Act. On these grounds, she prays that the Court should direct the authority under Section 10 to make a reference of the dispute sought to be raised by the union itself.

9. This contention has since been controverted by Mr. Naveen Sinha on the ground that though in the pleadings such a case has been sought to be made out but there is no direct prayer to the said extent. Neither there is any formulation of any such crystalized dispute as has been sought to be argued by Ms. Maurya. That apart, he further contends that such a concept is unknown in industrial jurisprudence to the extent that dispute may be raised for the first time before the High Court in a proceeding under Article 225 of the Constitution of India and that could be referred or could be directed to be referred by the authority under Section 10 skipping over the procedure provided in the Industrial Disputes Act itself. Inasmuch as a reference must proceed by a conciliation and on receipt of a failure report the question to form an opinion to refer under Section 10 could arise. Unless a dispute is raised and a conciliation proceeding is initiated and a failure report is submitted, there is no scope to raise such a dispute for the first time in a proceeding under Article 225 in order to eclipse the procedure laid down in the Industrial Disputes Act.

10. I have heard both the learned counsel at length. Both of whom had relied upon several decisions cited at the Bar, to which reference would be made at appropriate stage.

11. So far as the preliminary objection is concerned, it seems that the union had sought to espouse the cause of the individual workman seeking a reference of the dispute which has since been rejected by means of the orders contained in Annexure 5 to 26. From the prayer it does not appear that the union has sought a reference in respect of any other dispute formulated by it independent of the disputes of the individual workman. Industrial jurisprudence is based on class action or representative litigation. The enactment, as it stood, did not permit any individual dispute unless espoused by a body of workman or upon. It therefore, became necessary to amend the legislation and incorporate Section 2-A to bring within the ambit of such dispute even an individual dispute in certain circumstances as indicated in Section 2-A though it may not be espoused by the union or a body of workmen. The concept of class action or representative litigation as understood in the common law has been deviated from by reason of a special legislation in the form of Industrial Disputes Act where collective bargaining is permitted. The concept was evolved in order to enable the poor workmen to unite together and press their demand collectively so to confront a powerful employer. Unless the workmen collectively confront the employer, they may not be able to push through their fight against a mightier adversary. The industrial dispute even if referred to under Section 2-A, it does not require that it has to be proceeded with the support of the union, Section 2-A is infact an enabling Section, which permits even an individual workman to raise an industrial dispute even though not supported by the union. But it does not preclude the union to support an individual dispute under Section 2-A.

12. In fact in the present case, it appears that the workman had sought to raise industrial dispute under Section 2-A individually unsuccessfully. When it comes to a long drawn fight and requires approaching of a higher forum, the poor employees may not afford to approach this Court and bear the expenses and thus it, satisfies the concept of little Indian to approach collectively to seek a class action. While it can do so collectively or by themselves, there cannot be any justifiable reason to dissuade them from approaching the Court collectively taking shelter of a union or through the union. Similarly it also does not prevents union to take up the cause and espouse it for one or all those individual workmen collectively in order to discharge its obligation as provided in the object of the formulation of the union itself. The union is formed only to espouse the cause of its members or the employees of the concerned industry. If it dissuades from such action and refuses to espouse the cause of its members or employees, in that event the union would fail to discharge one of its obligations (sic). Thus it is open to the union to espouse the cause of the individual workmen collectively for the purpose of supporting the cause of individual workman.

13. Therefore, I do not find any force in the submission of Mr. Sinha though his argument was very attractive. Therefore, the preliminary objection as to the maintainability of the writ petition through the union is overruled.

14. Before entering into the merits of thecase, the other objection raised by Mr. Sinha withregard to the dispute sought to be raised on behalfof union by Ms. Maurya, may be taken up forthe sake of expediency, since it has bearing onthe question of maintainability on the basis of thepreliminary objection taken by Mr. Sinha. Ms.Maurya had contended that by reason ofemployment of casual employees for less than 80 days, the employer had been indulging into unfairlabour policy which is independent from the caseof the individual workmen in the presentproceedings, and apart from this, fewindividuals, there had been many other instances of which had been incorporated in the pleadingsresulting into individual disputes travelling to theIndustrial Courts and apprehending that the samething may happen in future and, therefore, it isopen to the union to raise such a dispute. :

15. There is no doubt that it is always open to the union to raise any such dispute and if such dispute is raised, it is open to it to proceed it through the procedure laid down in the Industrial Disputes Act, namely, through conciliation or reference as the case may be, according to the provisions provided in the Act itself.

16. But the question remains as to whether such a dispute could be raised for the first time under any proceeding under Article 225 of the Constitution of India

17. The Industrial Disputes Act is a complete code in itself and provides adequate procedure for settling of all disputes. The proceedings under Article 225 cannot be taken aid of to substitute or replace the procedure provided in the Industrial Disputes Act in the matter of resolving industrial disputes. While exercising power under Article 226, the High Court may not place itself in the shoes of the conciliation authority under the Industrial Disputes Act or the referring authority under Section 10 thereof. While exercising power under Article 225, the High Court does not exercise original jurisdiction with regard to an industrial proceedings. It exercises rather a revisional jurisdiction and scrutinises either administrative, quasi- judicial or judicial functions of different authorities entrusted to discharge statutory duties and obligations under the Industrial Disputes Act. The High Court in itself cannot claim to discharge this original obligation and duties of the authority under the statute when a person seeking remedy under Article 226 never approaches the authorities prescribed under the Act and skips over the whole procedure and lands himself into High Court through proceedings under Article 226 for seeking such relief.

18. Then again in the present case, a case was sought to be made out in the pleadings but no such prayer has been incorporated in the writ petition. It also appears that such a pleading has not been crystalized in the pleadings itself. Even if it was so crystalized as observed earlier, it could not have been raised for the first time in the proceedings under Article 226. It is always open to the union to crystallize such disputes and resort to such procedure laid down in the Industrial Disputes Act to espouse the cause or cause it to be resolved through appropriate proceedings. In such circumstances though strenuously argued by Ms. Maurya, I am not able, to persuade myself to agree with the contention in this respect and as such, the point raised by her stands overruled.

19. Now coming to the cases referred to by Ms. Maurya with regard to the class action, it appears that those are all settled principles of law and there cannot be any two opinions with regard to the same. But there is one distinguishing feature. The said feature is that all these decisions cited by her, were rendered to class action or public interest litigations. Even without the concept of industrial jurisprudence class action and public-interest litigation has also been recognized, through various judicial pronouncements of the Apex Court and many other High Courts. By now it is a settled principle. Therefore, it is not necessary to deal with those citations for the said (sic) this stage.

20. In the present case, the question that has been raised by Ms. Maurya is that by reason of these decisions, the Union is entitled to raise this dispute for the first time even before the High Court in a proceeding under Article 226. All these decisions cited by her do not support her contention and the ratio decided therein does not lend any direct support to her contention. All these decisions are related to public-interest litigation where the interest of the little Indians could not be espoused in any other mode or method and were striking their heads against the mighty State and were unable to seek relief for which the Court had come to their aid in given circumstances.

21. In the present case by reason of the fact the reference was rejected, they could very well maintain this class action seeking reference of their individual disputes through the union by reason of the concept of industrial jurisprudence relating to class action either (with or (sic)) without the aid of those decisions. But that must confine to the individual disputes raised by those little Indians, whose cause has been sought to be espoused by the union. But that does not entitle the union itself to raise an independent dispute referred by itself irrespective of the disputes of the individual workman together having a different connotation and meaning though it might come in aid of the individuals. Industrial jurisprudence is something different from the common law concept permitting representative or class action for the first time to raise such disputes skipping over the whole procedure laid down in the Industrial Disputes Act without approaching the authority created under the said Act in a proceeding under Article 226 of the Constitution.

22. Ms. Maurya had referred to the decision in the case of Akhil Bhartiya Soshil Karmachari Sangh (Railway) v. Union of India, (1981-I-LLJ-209) (SC) wherein it was held in paragraph 63 that 'current procedural jurisprudence is not of individualistic Anglo-Indian mould. It is broad-based and people- oriented, and envisions access to justice through 'class actions', 'public interest litigation' and 'representative proceedings'. Indeed, little Indians in large numbers seeking remedies in Courts through collective proceedings, instead of being driven to an expensive plurality of litigations, is an affirmation of participative justice in our democracy. We have no hesitation in holding that the narrow concept of 'cause of action' and 'person aggrieved' and individual litigation is becoming obsolescent in some jurisdictions.'

23. In the case of A.N. Pathak v. Secretary to the Government Ministry of Defence, (1987-II-LLJ-140) (SC) cited by Ms. Maurya the Apex Court had dealt with the question of collective litigation involving determination of different questions of fact based on separate cause of action wherein, in such cases, common action was held to be promoted on the ground that there was common interest and common question involved.

24. In the present case also with regard to the individual disputes sought to be espoused by the union may come within the same since in the present case though the cause of action is different but the facts are identical involving a pure question of law which is common to all i.e. whether the State Government was right in refusing to refer the individual disputes and rejecting the reference through the orders contained in Annexures 5 to 26. To the above extent, it is permissible to allow class action within the scope and ambit of the present case excepting the disputes sought to be raised for the first time by the union independent of the individual disputes before this Court skipping over the procedure in the Industrial Disputes Act without approaching the authorities therein.

25. Ms. Maurya also relied upon the decision in the case of Saroja Nanda Jha v. Hari Fertilizers 1994 68 Fac LR 1035, in which a Division Bench of this Court had taken a view that even if the causes of action are separate but all the individuals having been joined, interested, the same could very well be brought within the scope and ambit of one writ petition on payment of one set of Court fee and as such, a writ petition is maintainable.

26. She has also relied on the decisions in the case of Umesh Chand v. Krishi Utpadan Mandi Samity, AIR 1984 All 45 (FB). In the said case the question was as to whether a class action be maintained to espouse the cause of the individual members distinguished from the enforcing of its own rights by an Association. In Paragraph 20 thereof, the conditions were laid down as to how and in which circumstances such class action by an Association is permissible. It had relied on another Full Bench of this Court in the case of Mall Singh, 1968 All LJ 210, where it was held wherefore the right of claim does not arise from the same act or transaction, if the petitioners are jointly interested in cause or causes of action, there can be joinder of more than one person in a proceeding under Article 226. These two decisions though render some support or help to the contention of Ms. Maurya yet by reason of the distinguishing feature of the present case, this writ petition can be maintained even without the support of these two decisions cited by her or in other words, in view of the special feature of the present case, this writ petition is maintainable more so because of the support it may derive from those two decisions enabling this Court to take a view as observed earlier. But these decisions in no manner support Ms. Maurya's contention to the extent of espousing a fresh dispute independent of the individual workman by the union raised for the first time in these proceedings.

27. Now coming to the merits of the case, it appears that the refusal was made on the ground that the employer had assured that an opportunity would be given to those employees to absorb and for which a notice could be issued soon and, therefore, it was not expedient to refer the dispute. Such material might have been available from the failure report. The failure report has not been placed before this Court. However, it can very well be presumed that such a material was present on the record on which the Government had formed such an opinion. But then it is to be considered whether the materials on record could enable the authority under Section 10 to refuse the reference. The scope and ambit under Section 10 has been well prescribed through various decisions.

28. In case of Telco Convoy Drivers Mazdoor Sangh v. State of Bihar, (1989-II-LLJ-558) Apex Court had held that 'while exercising power under Section 10 of the Act, the function of the appropriate Government is administrative function and not judicial or quasi-judicial function and that in performing this administrative function, the Government cannot delve into the merits of the dispute and take upon itself the determination of the relief, which would certainly be in excess of the power conferred on it by Section 10 of the Act.' While making such observation, the Apex Court had relied on the decision in the case of Ram Autar Sharma v. State of Haryana, (1985-II-LLJ-187)(SC), M.P. Irrigation Karmachari Sangh v. State of M.P. (1985-I-LLJ-519) (SC) and Shambhu Nath Goyal v. Bank of Baroda, Jullundur, (1978-I-LLJ-484) (SC). Applying the test as held above the Apex Court had further observed that in case of a dispute whether the persons raising a dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under Section 10 of the Act and the Courts will always be vigilant whenever the Government attempts to usurp the powers or the Tribunal for adjudication of the valid disputes and that to allow the Government to do so would be to render Sections 10 and 12 nugatory.

29. In the present case the Government had in fact adjudicated the lis that there exists no dispute since the employer had assured that the case of the individual workmen would be considered for absorption. Inasmuch as whether such an assurance grants complete relief or resolves the disputes is a question of merit. Even despite such assurance the workmen may still consider that there is a dispute. That dispute is not resolved by such assurance. In such case if the appropriate Government comes to finding that there exists no dispute, in that event it would be in fact entering into the domain of the jurisdiction, which is conferred on the Tribunal or the Labour Court. On the record itself it appears that such raising of dispute is malafide or that on records there cannot be any material to form an opinion as to existence of the dispute or that it is apparent on the face of it that no dispute exists, even there is any apprehension or dispute or resemblance of disputes, it is not open to the appropriate Government to. adjudicate as to the existence of the dispute lest there are materials on the basis whereof a reasonable person (sic) arrives at a conclusion that no dispute exists at all.

30. Mr. Maurya had relied on a decision relied on by the Apex Court in the above decision namely, M. P. Irrigation Karmachari (supra) wherein it was held that the scope under Section 10 is a very limited jurisdiction conferred upon the State Government to examine patent frivolousness of the demand and it is to be understood as a rule that adjudication of demands made by the workmen should be left to the Tribunal to decide, since the conclusion contrary thereto drops all the opportunity of the employee to place evidence before the Tribunal and substantiate the reasonableness of the demand.

31. She had also relied upon a decision in the case of Girdhar Gopal Tiwary v. Union of India, 1992 Lab IC 1616, a judgment by a Division Bench of the Patna High Court as well as Orissa High Court in the case of Ashwini Kumar Mohanty v. Branch Manager, State Bank of Bikaner & Jaipur, 1992 Lab IC 1780 (Orissa). In the case of Ashwini Kumar Mohanty, (supra) the case was identical to the present case. Inasmuch as in the said case the Government had refused to refer the dispute that the appointments which were confined to the period of 80 days were intended to deny the employee of the opportunity to continue in, the post in contravention of Section 25-G and 25-H of the Act on the ground that the Bank was going to have a regular recruitment in future. In the said case refusal to refer on the ground that the Bank was going to resort to a regular recruitment in future was an extraneous consideration and amounted to entering into the merits of the dispute itself, which draws direct impact on the facts of present case. The said decision was rendered by a Division Bench. As observed earlier by me, the view taken by this Court finds support from the view taken by the Division Bench of the Orissa High Court and I have every reason to agree with the ratio decided in the said decision by the Division Bench of the Orissa High Court and I do not find any reason to deviate from there.

32. Ms. Maurya had also relied on a decision in the case of Basti Sugar Mills v. State of U.P. (1978-II-LLJ-412) (SC). In the said case the making of a reference has been retained to the extent that it is to settle industrial disputes which have a potential for large scale breach of the peace when the factories and workmen affected are numerous and that grim and grimmy life situations have no time for the finer manners of elegant jurisprudence. The working class though weaker class when organized is militant. Their deprivations are too desperate to stand delay. Policy formulation by Government takes time, involves consultation. A wise administration anticipates and acts before the flames spread. The purpose of legalising administrative intervention under the Industrial Disputes Act is to prevent disorder without prejudice to judicial justice. This ratio supports the view taken above.

33. Mr. Naveen Sinha, learned counsel for respondents on the other hand had relied on a decision in the case of Shambhu Nath Goyal v. Bank of Baroda, Jullundur (supra), been relied upon by apex Court in the decision in the case of Akhil Bhartiya Karmachari Sangh (Railway) (supra) and sought to distinguish the same by relying on a passage from paragraph 7, wherein it has been held that 'undoubtedly it is the Government to be satisfied about the existence of the dispute and that the Government does appear to be satisfied. But the said question has been answered in the line following to the extent that it would be open to the party impugning the reference that there, is no material before the Government, and it would be open to the Tribunal to examine the question.'

34. Mr. Sinha had also relied on the observations that the existence of the dispute is a factual question and expedient of making a reference is dependent on each particular case and it is entirely on the Government to decide upon as to whether it is expedient to make a reference or not.

35. It is not competent for the Government to reject or rely the reference arrived at on the basis of sufficient material in the present case to the extent that the assurance would resolve the whole dispute that has to be sought to be raised. Inasmuch as such employees could be taken in service by virtue of such recruitment for absorption as assured. But it is a question that is to materialise in future, for which notices are yet to be issued. It is only in the form of proposal and not a concrete action which could support the opinion of the Government that there were effective steps resolving the disputes. An assurance unless accepted by the employee cannot be said to resolve a dispute. Whether it would be an expediency or not is a question to be decided by the Government. But such decision though discretionary (sic) is to be exercised judiciously. It cannot be absolute discretion nor it can be a discretion to be exercised arbitrarily or on the basis of any extraneous consideration.

36. In the present case, it is apparent that the consideration that had weighed with the Government in forming such an opinion is extraneous to the exercise of power under Section 10 and travels beyond the scope and ambit of Section 10 to trench upon the jurisdiction of the Tribunal or the Labour Court, as the case may be.

37. Mr. Sinha then cites the decision in the case of Western India Match Company v. The Western India Match Company Workers' Union, (1970-II-LLJ-256)(SC). Relying on the observations made in paragraph 8 of the said judgment, wherein it has been observed 'No reference thus can be made unless at the time when the Government decides to make it an industrial dispute between employer and his employees either exists or is apprehended. No reference is contemplated by the Section when the dispute is not an industrial dispute, or even if it is so, it no longer exists, is not apprehended, for instance, where it is already adjudicated or in respect of which there is an agreement or a settlement by the parties or where the industry in question is no longer in existence.'

38. But these observations do not help Mr. Sinha in view of the facts and circumstances of the present case. There is no dispute that a reference can only be made when a dispute exists or is apprehended. The question of making a reference would arise only after the conciliation proceeding has been gone through and the conciliation officer has made a failure report. In the present case, existence of the assurance of the employer to the employees indicates a failure of the conciliation. The failure of conciliation indicates existence of a dispute. The assurance that a scheme for absorption would be taken up by the Bank is neither an agreement nor a settlement between the parties. It is the form of assurance resting in the womb of future. There is no material that such a scheme has been materialised. Thus relevance of such an assurance is wholly an extraneous consideration for forming an opinion within the scope and ambit of Section 10 aforesaid.

39. Admittedly, the disputes exist. It is not a case of apprehension of any dispute since it is dispute within the meaning of Section 2-A namely the workmen had been terminated or retrenched. Whether the workmen will succeed or not is not a question to be gone into while forming such opinion. It is not on the ground that the demand is frivolous or that there is no rationale of purpose to form an opinion that there is any dispute existing or apprehended. Then again it is not rejected on the ground of non-existence of the dispute but on the ground that the employer had assured to resolve the dispute by formulating a scheme for absorption of which notice is to be issued. Therefore, this decision does not help Mr. Sinha in his contention.

40. Mr. Sinha had also relied on the decision in the case of State of Madras v. C.P. Sarathy, (1953-I-LLJ-174)(SC). He had relied on a passage, wherein it is observed that factual existence of the industrial dispute and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because there were in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters. In the said case a reference was made, which was since challenged on the ground that the reference was made forming an opinion, since there was no material to form such an opinion. On the other hand, in the present case, the reference has been refused on the basis of formulation of an opinion on the materials on record as indicated above, which appears to be extraneous. Therefore, the said decision also cannot help Mr. Sinha in support of his contention.

41. In the counter-affidavit, in paragraph 6, the respondent No. 2 had contended that looking at the problem the Bank had taken a decision that steps be taken to absorb such workmen by giving them one time opportunity to appear and succeed in the test to be conducted by the Bank. A scheme was evolved by the Bank keeping in mind the interest for their absorption on permanent basis in regular service of the Bank, of those who were engaged temporarily for a period of 80 days and those who have put in 90 days of service in the Bank as temporary employees. A scheme was formulated by the Central Government for their absorption and this scheme was applicable in case of those temporary employees who had worked for a period of 90 days or more or after January 1, 1992. Admittedly, these individual workmen did not work for 90 days and, therefore, they did not come within the scheme, scope and ambit of the scheme already formulated.

42. On the other hand, it is contended that a scheme had since been formulated and a notice has been issued inviting applications from the persons who had put in 80 days service as temporary employees. But no date has been specified as on which date the said scheme has been formulated or notice has been published. In his usual fairness, Mr. Sinha has not claimed that this notice was published before the order of refusal was passed. Admittedly on record, it appears that the order of refusal to refer was passed on the basis that notice is going to be issued. Therefore, when the opinion was formed, there was no material that the assurance was translated into action. But, however, the fact remains that despite the claim that advertisement has been issued (sic) in respect of persons engaged for 80 days, the said advertisement has not been substantiated or translated into any positive action as is apparent from paragraph 7 of the counter- affidavit, wherein it has been contended that the exercise would not be complete on the ground of one category of employee having filed writ petition in the High Court of Judicature at Jaipur, in which by an order dated October 7, 1988, the declaration of results of the examination conducted for regularization of the services in Class III was stayed. Thus the question is still in the womb of future as is apparent from the admitted position as contended in the counter-affidavit.

43. Thus in the present case, it appears that the refusal to make a reference has been made on extraneous consideration outside the scope and ambit of the power conferred on the authority under Section 10 of the Industrial Disputes Act and as such, cannot be sustained.

44. But the fact remains that these orders were passed sometime in the year 1987. The Court cannot pass infructuous orders or cannot be oblivion of the present situation. It has to pass an effective order having regard to the situation and the implication that might occur through its order.

45. In that view of the matter, instead of quashing the order of refusal to refer, in my view, it would be appropriate if the appropriate authority under Section 10 is directed to reconsider the question once again if the same is raised individually by each or any one of the concerned workmen before the authority under Section 10 from the stage of which it was in 1987.

46. This writ petition is thus disposed of. The impugned order contained in Annexure 5 to 25 stands quashed subject to the direction given above.

47. Let a writ of certiorari do issue accordingly.

48. Let a mandamus do issue accordingly. In case reference is sought by individual workman once again within a period of two months from the date a certified copy of this order is obtained by the union, the appropriate authority under Section 10 is directed to reconsider the said question once again, within a period of one month from the date of raising such dispute. No costs.

49. Let a copy of this order may be issued to the learned counsel on payment of usual charges at the earliest.


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