Calcutta High Court
Abn Amro Bank N.V vs Union Of India & Ors on 12 June, 2009
Equivalent citations: AIRONLINE 2009 CAL 5
Author: Dipankar Datta
Bench: Dipankar Datta
W.P. No. 1313 of 2003
G.A. No.1220 of 2006
IN THE HIGH COURT AT CALCUTTA
CONSTITUTIONAL WRIT JURSIDICTION
ORIGINAL SIDE
Present : The Hon'ble Justice Dipankar Datta
ABN Amro Bank N.V.
...Petitioner
Vs.
Union of India & ors.
...Respondents
Mr. Partha Sarathi Sengupta ...for the petitioner Mr.Koushik Bhattacharya ...for the respondent no.4 Mr. Indraneel Chakravarty ...for the respondent no. 5 Mr. Sabyasachi Choudhury Mr. Chanchal Dutta ...for the respondent no.6 Heard on : March 3, 17 and 20, 2009 Judgment on : June 12, 2009 Notices dated November 1, 2002, January 24, 2003 and April 28, 2003 issued by the Assistant Labour Commissioner (Central), Calcutta-II (the second respondent) are the subject matter of challenge in this writ petition at the instance of the petitioner bank. The impugned notices (Annexures P-7, P-9 and P-20 respectively to the writ petition) called upon the petitioner bank to offer its comments and/or to participate in conciliation proceedings in respect of an industrial dispute raised by the General Secretary, Commercial Establishment Employees Association (Calcutta), the fourth respondent, over alleged unfair labour practice of the petitioner bank in seeking to exploit the fifth respondent (workman).
By the first notice, the second respondent forwarded to the petitioner bank copy of representation dated October 22, 2002 received from the fourth respondent and sought for its comments thereon. By the second and third impugned notices which were issued in the midst of conciliation proceedings, the petitioner bank was called upon to attend discussions which the second respondent intended to hold for arriving at a settlement.
It is revealed from the version of the fourth respondent that the fifth respondent was an employee of the petitioner bank continuously since October 1999 in the capacity of a clerk; that, illegally and unconstitutionally, the petitioner bank had asked him to work under one of its agents viz. M/s. Promark Pvt. Ltd., the sixth respondent (hereafter Promark); that, the petitioner bank with malafide intention had turned down the request of the fifth respondent to make him a permanent employee so as to deprive him of his genuine claims; that, such act on the part of the petitioner bank amounts to victimization and is bad in law being against principles of natural justice; and that, a request was accordingly made to the petitioner bank to give him the status of a permanent employee and to pay him all benefits as are being received by the other employees.
In course of conciliation proceedings before the second respondent, the petitioner bank had raised two points viz. (i) the fifth respondent was never its employee and as such master-servant relationship did not exist at all; and (ii) the fourth respondent has no locus standi to espouse the cause of the fifth respondent, and therefore the purported dispute is not an industrial dispute at all and initiation of conciliation at his end is bad in law and beyond the purview of the Industrial Disputes Act, 1947 (hereafter the Act).
Mr. Sengupta, learned Counsel appearing for the petitioner bank contended that the second respondent before attempting to enter into conciliation with the disputing parties did not satisfy himself as to whether any industrial dispute really existed or not. He referred to the provisions contained in Rule 12A of the West Bengal Industrial Disputes Rules (hereafter the State Rules) and contended that the Conciliation Officer ought to satisfy himself that a dispute exists and unless such satisfaction is reached, the proceedings initiated by him would be without jurisdiction.
Next, he contended by referring to the documents on record that the fifth respondent was never an employee of the petitioner bank. On the contrary, at all material times, the fifth respondent was an employee of Promark. In this connection, an affidavit filed by the Provident Fund Commissioner, the seventh respondent was referred to for the purpose of contending that Promark is covered under provisions of the Employees Provident Fund and Miscellaneous Provisions Act, 1952 with effect from April 1, 2001 and from the basic record being Form 9 submitted by it, it is clear that the fifth respondent is one of its employees having account no.WB/39677/05 with effect from the date of coverage. He also referred to the representation dated August 12, 2002 addressed to the petitioner bank by the fifth respondent to contend that it does not speak of any letter of appointment being given to him. In the absence of any letter of appointment, the claim of the fifth respondent that he is an employee of the petitioner bank is absolutely baseless. He relied on the decision in Standard Chartered Bank vs. Assistant Labour Commissioner (Central) & ors., reported in CAL. L.T. 1992(2) HC 223 to contend that in similar circumstances this Court had quashed the conciliation proceedings initiated by the Conciliation Officer on the ground that there is lack of jurisdiction and continuance thereof would be an abuse of the process of law.
It was thereafter contended by him that employees of the petitioner bank in substantial numbers are not members of the fourth respondent and hence it has no locus standi to espouse the cause of the fifth respondent. In this connection, attention of the Court was invited to paragraph 13 of the writ petition wherein it is pleaded as follows:
"It is stated that the respondent no.4 does not in law have any locus standi to espouse the cause of the respondent no.5, as it does not have requisite number of members in banking sector and substantial section of petitioner's employees are not members of Respondent no.4. Further the purported dispute sought to be raised by the Respondent no.4 was not even an 'Industrial Dispute' in law".
Paragraph 14 of the affidavit-in-opposition filed by the fourth respondent was thereafter referred to by him. Therein it has only been averred by its deponent that being the General Secretary of the Association, he has the authority to represent the fifth respondent since he is a member of the fourth respondent. It is further averred that the fourth respondent has in the past espoused the cause of employees of Grindlays Bank Ltd. and, therefore, it is not necessary that all the employees of the petitioner bank should be members of the fourth respondent. It has also been averred that since no other union is operating for the employees of the petitioner bank, the fifth respondent has a right to become a member of the fourth respondent and, consequently, it has lawfully espoused the cause of the fifth respondent.
He specifically contended that a perusal of paragraph 14 of the affidavit-in- opposition filed by the fourth respondent would reveal that the assertion in paragraph 13 of the petition that substantial numbers of employees of the petitioner bank are not members of the fourth respondent no.4 has not been countered. The decision in Sahu Jain Ltd. vs. Deputy Secretary, Ministry of Finance & ors. reported in 70 CWN 399 was relied on for the proposition that an evasive denial of an averment is no denial.
Reliance was also placed by him on the decisions in The Bombay Union of Journalist & ors. vs. The Hindu, Bombay & ors., reported in AIR 1963 SC 318, and M/S. Mitsubishi Shohi Kaisha Ltd. vs. The Fourth Industrial Tribunal & ors., reported in 1973 (1) LLJ 146 to contend that the fourth respondent had no locus standi to represent the fifth respondent.
Based on the aforesaid submissions, he prayed for an order to quash the conciliation proceedings pending before the second respondent.
Mr. Chakraborty, learned counsel appearing for the fifth respondent by referring to the first annexure to the affidavit-in-opposition filed by the fourth and fifth respondents submitted that by his order dated June 23, 2003, the second respondent has recorded that in spite of his best efforts the possibility of amicable settlement is ruled out since the parties have divergent views and thus the conciliation has ended in failure. He contended that since this Court by its order dated July 10, 2003 granted interim relief in terms of prayer (e) of the writ petition for a limited period which was subsequently extended until further orders, no further action could be taken. However, with the report of the second respondent that the conciliation proceedings had failed, the writ petition questioning the notices by which the petitioner bank was called upon to attend conciliation proceedings had become infructuous and, therefore, the writ petition ought to be dismissed as such.
Attention of the Court was invited in this connection to paragraph 4 of the affidavit-in-opposition filed by the fourth and fifth respondents which reads as follows:
"I say the instant Writ Petition has been filed on suppression of material facts and it is a premature petition as the subject matter covered under the said Industrial Dispute has been conciliated upon by the Respondent no.2 Assistant Labour Commissioner and he declared failure of the conciliation on 23.6.2003 as the Writ Petitioner Bank was adopting delatory tactics. In this connection xerox copy of the proceedings held on 23.6.2003 by the Respondent No.2 is annexed and marked with Annexure R hereto. As such, the instant Writ Petition is not maintainable under Article 226 of the Constitution of India".
He also sought to demonstrate before the Court that there was indeed master-servant relationship between the petitioner bank and the fifth respondent and, therefore, the second respondent did not commit any illegality in initiating proceedings for conciliation.
He thus prayed for dismissal of the writ petition.
Learned Counsel for the respective parties have been heard. Mr. Chakraborty did not advance any argument of substance regarding the contention raised by Mr. Sengupta that the fourth respondent had no locus standi to espouse the cause of the fifth respondent, yet, hardly nothing seems to turn on such inability in favour of the petitioner bank having regard to the firm stand taken by it before the second respondent which has aborted a settlement.
For the purpose of a decision on the present petition the scheme of the Act, insofar as it is relevant, may be noticed. In terms of Section 12(1) of the Act, the Conciliation Officer is obliged to hold conciliation proceedings in the prescribed manner where an industrial dispute exists or is apprehended in respect of public utility service whereas in respect of non-public utility service, he has a discretion either to hold or not to hold such proceedings. The Apex Court in General Manager, Security Paper Mill, Hoshangabad vs. R.S. Sharma & ors., reported in 1986 LAB. I.C. 667, ruled that a Conciliation Officer is not competent to adjudicate upon the disputes between the management and its workmen but he is expected to assist them to arrive at a fair and just settlement. If proceedings do not yield a settlement between the parties and as and when a failure report is submitted by the Conciliation Officer, conciliation proceedings terminate and it is for the appropriate Government to decide whether a case for referring an industrial dispute for adjudication exists or not. As held in Secretary, Indian Tea Assn. v. Ajit Kumar Barat, reported in (2000) 3 SCC 93, "Before making a reference under Section 10 of the Act the appropriate Government has to form an opinion whether an employee is a workman and thereafter has to consider as to whether an industrial dispute exists or is apprehended." If at all a reference is made, it is for the concerned Tribunal to decide the issues that might come up before it for an answer.
In the opinion of this Court, conciliation proceedings in terms of Section 12 of the Act do not partake the character of adjudicatory process of rival claims by the Conciliation Officer, who has limited jurisdiction. A Conciliation Officer in terms of Section 12 of the Act can assume jurisdiction if it is made to appear before him that an industrial dispute exists or is apprehended. The Conciliation Officer, if he decides to exercise discretion, is obliged to explore promptly the possibility of a settlement of the dispute between the parties, nothing more nothing less. Sub-section (2) of Section 12 by repeated reference to "settlement of the dispute" and not "settlement of industrial dispute", by fair and amicable means upon investigation of the dispute, makes the position clear. No duty is therefore cast on him to embark on a preliminary enquiry and decide as to whether an "industrial dispute" within the meaning of Section 2(k) of the Act exists or is apprehended or not, or as to whether the Union espousing the cause of the workmen has locus standi or not. The insistence of the petitioner bank that the Conciliation Officer must first decide the issues raised by it before he embarks on the process of urging the parties to arrive at a settlement, in the considered view of this Court, is not comprehended in the Act or in the Industrial Dispute (Central) Rules (hereafter the Central Rules). If the Conciliation Officer decides either way on the objections raised before him by the management, that would be an act in excess of jurisdiction since he has no power to adjudicate rival claims. If no settlement of the dispute is reached, the appropriate Government has to consider expediency of making reference having regard to the relevant circumstances, and in deciding the question of expediency either to make or not to make a reference, it may not remain confined to the failure report of the Conciliation Officer only. If the claim is prima facie patently frivolous or thoroughly belated or that the facts are so glaring that adjudication is not required, the appropriate Government, in its discretion, may not refer the industrial dispute for adjudication. Since in referring a dispute under Section 10 of the Act or under Section 12(5) thereof the appropriate Government does not function in judicial or quasi-judicial capacity but its functions are purely administrative, no adjudication really takes place at that stage. Of course, if the appropriate Government in deciding not to make the reference acts in a manner which would attract judicial review, invocation of writ jurisdiction in a given case may be permissible. However, unless the Conciliation Officer commits an error of law within his limited jurisdiction, his action is not liable to be interfered with in writ proceedings.
Turning to the facts of the present case, no legal right of the petitioner bank appears to have been infringed by any State action. By inviting the petitioner bank to participate in conciliation proceedings, the Conciliation Officer has not committed any error warranting interference. If the contentions raised by Mr. Sengupta are decided by the Court of Writ at this stage, in such an eventuality, it would have to substitute itself first, for the appropriate Government and then, for the concerned Tribunal. The Writ Court is not supposed to place itself in the position of the Government or the Tribunal and give a decision on merits pertaining to issues on which the authorities in terms of the Act are required to apply their mind and pass appropriate order(s).
Mr. Sengupta has placed reliance on Rule 12A of the State Rules. This Court doubts the applicability of the State Rules in respect of a banking industry covered by the Central Rules. Since Mr. Sengupta was not called upon to argue this point, no conclusive opinion is expressed. However, assuming that the State Rules do have application, Rule 12A would not apply in the present case since the cause of the fifth respondent has been espoused by the fourth respondent.
In Standard Chartered Bank (supra), no law has been laid down upon consideration of Section 12 of the Act having the effect of a binding precedent. That the Conciliation Officer is not competent to adjudicate upon the disputes between the parties, as ruled in R.S. Sharma (supra), was also not noticed. This Court would, therefore, hold that it was a decision rendered on the peculiar facts of the case.
The law laid down in Bombay Union of Journalist (supra) Mitsubishi Shohi Kaisha (supra) cannot be doubted. At the same time the decision in J.K. Jadhav vs. Forbes Gokak Ltd., reported in (2005) 3 SCC 202 is also worth noting wherein, relying on earlier decisions rendered by it, the Apex Court ruled that an "outside" union could be held to be sufficiently representative to espouse the cause.
All these decisions could well fall for consideration of the appropriate Government while it applies its mind for deciding whether it is expedient to make a reference or not and it would not be proper for the Court of Writ to direct the appropriate Government to exercise its discretion in a particular manner.
But since it is evident from the minutes being part of the affidavit-in- opposition of the fourth and fifth respondents that possibility of a settlement is ruled out and considering the firm stand of the petitioner bank and the grievance voiced by it herein, this Court is convinced that the disputing parties cannot reach a settlement. This writ petition has been pending for almost six years. Interest of justice demands that the dispute between the parties, if comprehended within the meaning of "industrial dispute" as defined in Section 2(k) of the Act, ought to be expeditiously decided. Primarily with this in view, this Court directs the second respondent to submit failure report to the appropriate Government as early as possible but not later than a fortnight from date of receipt of a copy of this order. The appropriate Government, in its turn, upon perusal thereof and taking into consideration the objections of the petitioner bank shall decide in accordance with law whether on facts and in the circumstances it is expedient to make a reference or not. It is made clear that if no failure report is received within the above time-frame, the appropriate Government shall independently, but with expedition, take steps as directed above.
The writ petition stands disposed of with the above directions, without order for costs.
In view of the above order, the application being G.A. No.1220 of 2006 also stands disposed of.
Urgent photostat certified copy of this judgment, if applied for, be furnished to the applicant within 4 days from date of putting in requisites therefor.
(DIPANKAR DATTA, J.)