Gujarat High Court
Junagadh District Coop Bank Ltd vs Gujarat Bank Workers Union & on 21 December, 2013
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/18330/2013 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 18330 of 2013
With
SPECIAL CIVIL APPLICATION NO. 18016 of 2013
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JUNAGADH DISTRICT COOP BANK LTD....Petitioner(s)
Versus
GUJARAT BANK WORKERS UNION & 1....Respondent(s)
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Appearance:
MR.VARUN K.PATEL, ADVOCATE with MR. K. M. PATEL, SR.ADVOCATE for
Petitioner(s) No. 1
MR. D.S. VASAVADA, ADVOCATE for respondent No.1
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CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 21/12/2013
COMMON ORAL ORDER
1. These two petitions are cross petitions. Both are directed against the order dated 04.12.2013 of the Industrial Court, Rajkot passed below Application Exh.13 in Reference (I.C.) No.3 of 2007. The first captioned petition is by the Bank, whereas the second captioned petition is by the Workers' Union. The Application Exh.13 culminating into the impugned order was filed by the Workers' Union.
2. Heard learned Senior Counsel Mr. K.M.Patel assisted by learned advocate Mr. Varun Patel for the Bank and learned advocate Mr. D.S.Vasavada for the Workers' Union in the respective petitions.
3. Two references being Reference (I.C.) No. 3 of 2007 and Reference (I.C.) No.1 of 2007 are pending before the Industrial Court and they relate to demand Page 1 of 7 C/SCA/18330/2013 ORDER regarding change in the settlement dated 16.01.2002 which was entered into between the Bank and the Union. The former reference was by the Bank, whereas latter was by the Union.
3.1 The settlement was entered into in respect of different subjects, such as wage, remuneration, leave benefits, seniority, promotion including recruitment of staff in the Bank. The period of settlement came to end on 30.01.2005. After expiry of the period of settlement, the Bank issued an advertisement for recruiting the clerical staff and sub-staff in the Bank which led the Union to file Application Exh.13, praying for stay of the recruitment process, contending that the recruitment being undertaken was in breach of the settlement.
3.2 By the impugned order, the Industrial Court disposed of Application Exh.13, permitting the Bank to fill up 90 posts in the clerical cadre and 14 posts of peon on temporary basis. The Tribunal directed that the Bank shall obtain from successful candidates an undertaking that appointment being given would be only temporary and would be subject to final outcome of the reference and such undertakings shall be produced before the Court. The Tribunal further directed that main reference shall proceed and shall be decided within three months and the parties would not ask for unnecessary adjournments.
4. Assailing the order below Application Exh.13, the learned Senior Counsel Mr. K.M.Patel submitted that Page 2 of 7 C/SCA/18330/2013 ORDER the period of settlement was already over, and therefore, section 116(1) of the Bombay Industrial Relations Act, 1946 would operate. He placed reliance on decision in Yamuna Mills Company Ltd. vs. Majoor Mahajan Mandal, Baroda & ors. [Special Civil Application Nos.30 and 31 of 1957, dated 13.03.1957] of the Bomaby High Court, that after expiry of the period, the obligation of the employer would cease as the recruitment would fall under Schedule-III of Item 6 of the Act.
4.1 Section 78(1)(iii) was referred to, and it was submitted that the application of the Union would have been competent before the Labour Court only and could not have been maintained before the Industrial Court. In that regard, learned Senior Counsel invited attention of the Court also to the fact that the stay application before the Labour Court was also made invoking B.I.R. Act, being B.I.R. Application No.2 of 2013, copy of which figures at Page-93, Annexure-F. The said application has not culminated into any decision and Application Exh.13 came to be filed before the Industrial Court it was submitted.
4.2 Learned Senior Counsel placed reliance on the decision in Garden Silk Mills Ltd. vs. Ashok K. Jha & Ors [2008 (2) G.L.H. 742) and Ashok K. Jha & Ors. vs. Garden Silk Mills Ltd. and Anr. [(2009) 10 SCC 584]. He also relied on the decision in Gujarat Industrial Security Force Society vs. Workmen [2013 3 GLR 2291], to submit that in appropriate case, a petition under Article 227 of the Constitution of India even against Page 3 of 7 C/SCA/18330/2013 ORDER the interim order of the Industrial Court or Tribunal is maintainable.
4.3 On the other hand, learned advocate Mr. D. S. Vasavada relied on section 193D of the B.I.R. Act and submitted that Application below Exh.13 was maintainable and competent before the Industrial Court and it was open to the Union to seek interim order in the pending reference. It was submitted the order is interlocutory in nature. Learned advocate for the respondent relied on the decision in Gyan Mandir Society and Anr. vs. Ashok Kumar and Ors. (2010 AIR SCW 1550) and Maharashtra General Kamgar Union vs. IIac Limited & Anr. (2006 II CLR 550), in support of his contentions.
5. Having regard to the issues involved, the petitions require consideration.
5.1 Hence, RULE returnable in the 2nd week of March, 2014. The respective learned advocates waive service of notice of Rule in both the petitions.
6. Heard learned advocates of both the sides also on the question of interim relief.
7. It was submitted by learned Senior Counsel that looking to the nature of directions issued by the Industrial Court, mandating the Bank to give only temporary appointments to the selectees, the meritorious persons would rescue themselves from joining. He submitted that the recruitment process may be permitted to proceed, because if the requisite staff with proper strength is not available, the Page 4 of 7 C/SCA/18330/2013 ORDER functioning of the Bank would suffer. He submitted that the directions are required to be lifted in toto so that Bank can proceed with the recruitment.
8. Learned advocate Mr. D.S. Vasavada for the Union opposed and submitted that when the reference was pending, the interim directions issued could had balanced the rights of both the parties.
9. It cannot be gainsaid that in the facts of the case, if Bank is not permitted to recruit the sub- staff and staff of clerks, the day-to-day working and functioning of the Bank would adversely affect. It was stated that the recruitment of staff has not been undertaken in the Bank since long.
9.1 From the impugned order, it was noticed that the Industrial Court has permitted the Bank to recruit the staff only as temporary appointment. While it is true that when the dispute is pending in form of proceedings of reference before the Industrial Court and now also before this Court, it goes without saying that appointments, which may be made in the process of recruitment, shall abide by the Court's decision, at the same time requiring the Bank to recruit only on temporary basis as such and asking it to make the appointments only as temporary defies rationable. There is a substance in submission of learned Senior Counsel for the Bank that this condition would deprive the Bank to have the best and efficient candidates as nobody would prefer to join. Hence, this part of direction needs to be excepted.
Page 5 of 7 C/SCA/18330/2013 ORDER10. It would subserve the interest of parties if the following modified directions are issued in substitution of the directions given by the Industrial Court, to govern the rights:-
(i) The Bank may continue with the process of recruitment of clerical staff and sub-staff for which the advertisement has been issued.
(ii) The appointments, which may be made to the various posts, shall be subject to outcome of the proceedings between the parties.
(iii) In the letters of appointment, which may be issued by the Bank to the selectees, there shall be a specific mention as part of one of the conditions of appointment that the appointment shall be subject to outcome of the orders which may be passed by the Court.
(iv) The Bank shall invite attention of the candidate concerned to the said condition.
(v) The Bank, in its discretion, may further obtain an undertaking to that effect from the appointee concerned.
10.1 The direction in the impugned order regarding expeditious hearing and completion of main reference proceedings shall continue to operate with reiteration from this Court and the Industrial Tribunal shall make all efforts that main reference proceedings are Page 6 of 7 C/SCA/18330/2013 ORDER completed and proper decision is taken within a period of three months, as already directed. The direction given in Paragraph-32 of the impugned order is not disturbed and reiterated.
Direct service is permitted.
(N.V.ANJARIA, J.) Chandrashekhar Page 7 of 7