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Anantray Jatashanker Trivedi Vs. Bank of Baroda - Court Judgment

LegalCrystal Citation
SubjectLabour and Industrial
CourtGujarat High Court
Decided On
Judge
Reported in(1979)1GLR597
AppellantAnantray Jatashanker Trivedi
RespondentBank of Baroda
Cases ReferredThe Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors.
Excerpt:
.....petitioner moved this high court under article 226 of the constitution, challenging the said order as illegal and ultra vires on various grounds. that being the situation, the ratio of the supreme court decision would clearly apply. the dispute between the parties can be said to be an industrial dispute arising out of a right or liability under the act and so the better remedy available to the suitor is to get an adjudication under the act. mankad is right, but the various principles that are laid down there can very well show that the industrial forum is a better forum, more efficacious and more expedient in a matter like this. one good specimen was cited before me by mr. it appears that the petitioner has got a good case on merits, but from the enormity of allegations put forward by..........the jurisdiction of this high court in such a question was raised by mr. desai. he urged that the high court's jurisdiction under article 226 after the 42nd amendment was whittled down and the high court could exercise its jurisdiction only in three circumstances set out in clauses (a), (b) and (c) of article 226(1). the first clause (a) deals with the enforcement of any of the rights conferred by the provisions of part iii, that is, fundamental rights. certainly, this case is not resting on the fundamental rights of the petitioner. clause (b) deals with redress of any injury of a substantial nature by reason of the contravention of any other provision of the constitution or any provision of any enactment or ordinance or any order, rule, regulation, bye-law or other instrument made.....
Judgment:

N.H. Bhatt, J.

1. This is a petition by an employee of the respondent Nationalised Bank of Baroda, challenging the order of punishment confirmed on 29-7-75 by the appellate authority, dismissing the appeal of the petitioner. Two charges were held as proved as per the order, Annexure L, and his one increment in respect of each of the charges was ordered to be stopped. This stoppage was to have the effect of postponing his future increments also. This punishment was provided in respect of three sub-charges. On the second head of the charge, he was given a warning in writing in respect of his behaviour and also enjoining upon him that he should not give any cause for complaint about his conduct in future. It was further ordered that the petitioner's period of suspension from 2-4-73 was to be treated as such. Having failed in his appeal, the petitioner moved this High Court under Article 226 of the Constitution, challenging the said order as illegal and ultra vires on various grounds. The grounds are (i) variance between the charge and proof, (2) the petitioner not being heard in respect of the punishment, (3) the authority having no right to pass the order in respect of the period of suspension and (4) non-compliance with the principles of natural justice. In the petition, the petitioner had ultimately prayed to issue a writ of certiorari, after calling for the proceedings from the respondent, to quash the disciplinary actions against the petitioner and to quash the orders of the Enquiry Officer dated 14-4-75 and of the appellate authority dated 29-7-75 with a further direction to the respondent to pay all the emoluments and advantages accruing to the petitioner as if this punishment was not inflicted on him.

2. The petition has been hotly contested on behalf of the Bank of Baroda. The affidavit-in-reply was filed by the Head of the Staff and Personnel Department of the Bank of Baroda.

3. A few facts require to be stated. The petitioner was working as a driver to ply the bank's jeep pertaining to the Satellite Branch of Anjar Branch of this Bank The duty of that Satellite Branch was to catter to the banking needs of the people round-about scattered over different villages. It was alleged against the pensioner that he had committed various acts of misconduct and was liable to be proceeded against departmentally. On 26-3-73, the petitioner was told that a decision was reached to hold the departmental enquiry and one Mr. I.C. Desai, Deputy Chief Officer, Enquiry Cell, Central Office, Bombay, was appointed as the Enquiry Officer and one Mr. C.D. Modi, Regional Manager, Rajkot was designated as the appellate authority. The enquiry was sought to be proceeded against in accordance with the provisions of the bi-partite settlement dated 19-10-66 between the various Banking Companies on one hand and their employees represented by the Unions on the other. We are not much concerned with the details.

4. Mr. Desai, the learned Counsel appearing for the respondent-bank, firstly raised a preliminary objection that the petition was not maintainable because the case would not fall under any of the three Clauses (a), (b) or (c) of Sub-article (1) of Article 226 of the Constitution. Raising of this preliminary point by Mr. Desai was controverted by Mr. Mankad, the learned advocate for the petitioner, by urging that no such plea was taken in the reply filed on behalf of the Bank and that for want of any such a pleading, such a plea should not be entertained. As this, question was raised for the first time and that too in the course of arguments, I had adjourned the hearing of this matter on two occasions, but I had permitted Mr. Desai to raise this question, which is a pure question of law and pertaining to the jurisdiction of this High Court.

5. Mr. Desai's submission was that this being a dispute essentially of the nature of an industrial dispute, there was adequate remedy available to the petitioner to have his grievance redressed in an Industrial Tribunal established under the Industrial Disputes Act. Mr. Mankad in reply submitted that the Bank being a State in terms of Article 13 of the Constitution, could be proceeded against by a writ petition, even though the industrial dispute could have been raised and the petitioner's grievance might have been redressed. Mr. Desai had relied upon the judgment of the Supreme Court in the case of The Premier Automobiles Ltd. v. Kamlakar Shantaram Wadke and Ors. : (1975)IILLJ445SC in support of his proposition. The judgment primarily proceeds to deal with a question whether a civil court has got jurisdiction to entertain an industrial dispute and the Supreme Court has laid down its propositions in clear and categorical terms in paragraphs 9 and 23 of its judgment. Various terms and conditions of service, including the procedural safeguards, were settled between the parties in pursuance of a settlement arrived at between certain Banking Companies and their Workmen, as per the Memorandum of settlement arrived at on 19-10-66 before the Chief Labour Commissioner (Central) New Delhi in an industrial dispute between the managements of the Banks as represented by the Indian Banks' Association, Bombay and the Bombay Exchange Banks Association, Bombay and their workmen as represented by the All India Bank Employees' Association and All India Bank Employees' Federation over the various issues such as terms and conditions of the service of bank employees, etc. As a matter of fact, the petitioner himself has produced with the petition an extract from this settlement in order to support his contention that the various safeguards provided for in this settlement were flagrantly violated by the respondent in the departmental enquiry against him. That being the situation, the ratio of the Supreme Court decision would clearly apply. The dispute between the parties can be said to be an industrial dispute arising out of a right or liability under the Act and so the better remedy available to the suitor is to get an adjudication under the Act.

6. Mr. Mankad's submission, however, in this connection was that the above judgment of the Supreme Court in Premier Automobile's case (Supra), dealt with the exclusion of jurisdiction of a civil court, but that did not deal with the jurisdiction of the High Court in exercise of its prerogative writ jurisdiction. Technically Mr. Mankad is right, but the various principles that are laid down there can very well show that the industrial forum is a better forum, more efficacious and more expedient in a matter like this. I am, therefore, inclined to hold that when it is open to the petitioner to have recourse to the Industrial Tribunal for ventilating his grievance and seeking his redress, the High Court should be loath to exercise its special jurisdiction under Article 226 of the Constitution. I say so all the more because in this case, various controversial aspects are also raised. As for example, the petitioner wants the court to examine whether there is variance between the charge and the finding. One good specimen was cited before me by Mr. Mankad. According to him, one factual allegation against the petitioner was that on 1-9-72 he had left the vehicle at village Chandia, but the finding that culminated in the order of punishment was that in January 1973 at another village Lakhapur, the petitioner was sitting in a hotel, opposite the road where the jeep was allowed to lie unattended. Mr. Mankad submitted that this was just a specimen and the enquiry against him was bristling with many such patent illegalities or irregularities and violation of the principles of natural justice. It appears that the petitioner has got a good case on merits, but from the enormity of allegations put forward by the petitioner in his petition, it is apparent that many controversial questions of facts are arising which would call for elaborate leading of oral and documentary evidence and thorough examination of the same with pros and cons nicely weighed. In this view of the matter also, I feel that industrial forum would be a proper and more efficacious forum for the petitioner to have his grievance ventilated and redressed.

7. One more argument, however, touching the jurisdiction of this High Court in such a question was raised by Mr. Desai. He urged that the High Court's jurisdiction under Article 226 after the 42nd Amendment was whittled down and the High Court could exercise its jurisdiction only in three circumstances set out in Clauses (a), (b) and (c) of Article 226(1). The first Clause (a) deals with the enforcement of any of the rights conferred by the provisions of Part III, that is, fundamental rights. Certainly, this case is not resting on the fundamental rights of the petitioner. Clause (b) deals with redress of any injury of a substantial nature by reason of the contravention of any other provision of the Constitution or any provision of any enactment or Ordinance or any order, rule, regulation, bye-law or other instrument made thereunder. The petitioner's rights are flowing from the bipartite settlement of 1966 referred to above. That settlement, though made in accordance with the provisions of the Industrial Disputes Act in the course of the proceedings before the Chief Labour Commissioner (Central) New Delhi, cannot be said to be an instrument made under the Act. The said agreement can at the most be said to be an instrument recognised under the Act, but it cannot be said to be an instrument made under the Act. So, Clause (b) of Article 226(1) of the Constitution would not be attracted. So will be the case with regard to Clause (c) of the said Article 226(1). The petitioner no doubt seeks redress of an injury, but his injury is not stemming out of any illegality in any proceedings by or before any authority under any provision of any enactment or Ordinance or any order, rule regulation, bye-law or other instrument made under the law.

8. Mr. Mankad, however, urged that this bi partite settlement, which was matfein the year 1966 when the Banks were private Banking Companies, assumed the character of a regulation by virtue of Section 19 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1970. He urged that by virtue of Section 19(3) of the said Act, these provisions of the bi-partite agreement should be deemed to be orders made by the existing bank and by virtue of said sub-section, they should be deemed to have been made in the form of regulations, awaiting the formal making of Regulations under Section 19 of the Act. It is difficult to subscribe to this ingenious argument put forward by Mr. Mankad for the simple reason that this settlement by no Fritch of imagination can be said to be a regulation, rule, bye-law or order made by the Bank prior to its Nationalisation. In this view of the matter, I think that this writ petition is not competent and even if it is competent, in the facts and circumstances of this case, I decline to entertain it because I hold that there is a more efficacious remedy available to the petitioner before the forum established under the Industrial Law. The result is that the petition fails and is dismissed. Rule is accordingly discharged with no order as to costs.


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