Calcutta High Court
Standard Chartered Grindlays Bank ... vs Union Of India (Uoi) And Ors. on 22 August, 2006
Equivalent citations: (2006)IIILLJ881CAL
Author: Debasish Kar Gupta
Bench: Debasish Kar Gupta
JUDGMENT Debasish Kar Gupta, J.
1. This writ application is filed by the petitioner Standard Chartered Grindlays Bank Ltd., (formerly known as ANZ Grmdlays Bank Ltd.,) challenging the legality and validity of the order of reference No. L-12012/223/ 2000-IR (B-1) dated February 8, 2001 passed by the Central Government in exercise of powers conferred by Clause (d) of Sub-section (1) and Sub-section 2(a) of Section 10 of the Industrial Disputes Act 1947 referring the dispute relating to the order of dismissal from service passed against the respondent No. 6 to the respondent No. 5 for adjudication.
2. The respondent No. 6 was appointed as Clerk-Cum-Cashier under the petitioner on or about March 1, 1971. Pursuant to a circular, the respondent No. 6 applied for the post "Head Cashier Grade-I on Special Rates of Pay". The respondent No. 6 was selected and appointed to the above post of "Head Cashier on Special Rates of Pay, Grade-I" on probation with effect from May 12, 1978. The appointment of the respondent No. 6 to the above post was duly confirmed as per communication dated November 23, 1978. Thereafter the respondent No. 6 was promoted to the post of "Head Cashier on Special Rates of Pay, Grade-II" as per communication dated April 2, 1988. Subsequently, the respondent No. 6 was promoted to the post of "Head Cashier (SSRP, Job Grade-Ill)" with effect from August 1, 1992. He was posted at 41 Chowringhee Road branch under the petitioner. As per communication dated January 8, 1999 the petitioner bank called upon the respondent No. 6 to submit his explanations to the charges levelled against him in the above communication and placed him under suspension from the banks service pending further investigation against him. The respondent No. 6 submitted his reply dated January 10, 1999 to the above charges. The respondent No. 6 was given an opportunity to examine the documents relating to the charges levelled against, him and to appear in the interview on January 27, 1999 relating thereto. After adjournment of the interview on two occasions the respondent No. 6 appeared in the interview on April 28, 1999. The minutes of the proceeding was forwarded to the respondent No. 6 as per communication dated May 20, 1999. As per communication dated June 15, 1999 an order of punishment of "dismissal without notice" passed against the respondent No. 6 in terms of paragraph 4 of Section XVIII of the "terms of service of the Management Staff was served upon him. The respondent No. 6 made representations before the respondent No. 1 in connection with the aforesaid order of dismissal. The petitioner bank received a communication dated December 22, 1999 from the Regional Labour Commissioner (Central), Calcutta, the respondent No. 3, with a proposal to discuss the dispute in between the management of the petitioner and the respondent No. 6 over the order passed against the, respondent No. 6. The petitioner bank was also requested to submit detailed comments on the letter of the respondent No. 6 dated November 19, 1999. By a letter dated January 24, 2000 the petitioner raised a preliminary objection with regard to the jurisdiction of the respondent No. 3 to initiate conciliation proceedings with regard to the order of dismissal passed by the petitioner against the respondent No. 6. The petitioner enclosed all documents relating to the service of the respondent No. 6 thereto to show that the respondent No. 6 not being a workman, there could not be any "industrial dispute" and as such conditions precedent for conciliation proceedings were wholly absent. Pending consideration of the above preliminary objection raised by the petitioner, the respondent No. 3 as per communication dated March 24, 2000 fixed the date of holding joint discussion conciliation proceeding on April 4, 2000. The above notice was received by the petitioner on April 6, 2000 and as such the petitioner could not send its representative to the office of the respondent No. 3 on the date of conciliation proceedings on April 4, 2000. However, after receiving of the above notice, the petitioner intimated the respondent No. 3 of the reasons for not attending the hearing on April 4, 2000. Thereafter, as per communication dated May 23, 2000, the conciliation officer submitted the failure of conciliation report to the Central Government with his proposal to refer the dispute to the respondent No. 5 for adjudication. By communication dated November 7, 2000 the petitioner bank was requested to settle the dispute amicably by discussion with the respondent No. 6 and to furnish the comments to the Ministry of Labour, Government of India within 60 days, failing which there would be a presumption that there was no objection to the dispute being referred for adjudication. By a communication dated December 29, 2000 the petitioner bank raised objection to the proposal to refer the dispute to the respondent No. 5 pointing out that the respondent No. 6 not being a workman there could be no "industrial dispute". Ultimately the petitioner bank received the impugned order of reference No. L-12012/223/2000/IR(B-I) dated February 8, 2001 from the respondent No. 3 passed in exercise of powers conferred by Clause (d) of Sub-section (1) and Sub-section 2(a) of Section 10 of the Industrial Disputes Act, 1947 referring the dispute relating to the order of dismissal passed against the respondent No. 6 to the respondent No. 5, i.e. the Central Government Industrial Tribunal-cum-Labour Court Calcutta for adjudication which is under challenge in the writ application.
3. Mr. Partha Sarathi Sengupta, learned advocate appearing on behalf of the petitioner bank, submits that the respondent No. 6 was appointed in the managerial post with effect from May 12, 1978. But the respondent No. 3 without deciding the preliminary objection raised by the petitioner bank as to whether the respondent No. 6 was a workman under the Industrial Disputes Act forwarded his failure of conciliation report to the Central Government. Mr. Sengupta further submits that on receipt of the communication dated November 7, 2000 from the respondent No. 4 the petitioner bank as per communication dated December 29, 2000 raised objection to the proposal to refer the dispute to the respondent No. 5 categorically pointing out that the respondent No. 6 not being a workman there could be no "industrial dispute.
4. Mr. Sengupta submits that as the Head Cashier, the job of the respondent No. 6 entailed overall control of the cash department of the branch office where he was posted. The job of the respondent No. 6 required knowledge, planning, analytical ability, communication judgment, innovation, leadership, interpersonal relationship and resourcefulness and his performance was assessed on the basis of his knowledge of work and the above managerial skill. It appears from the performance appraisal and potential review made by the petitioner bank that the post in which the respondent No. 6 was employed was managerial post. Mr. Sengupta also submits that the performance appraisal and potential review for the periods from 1980 and May 1987 to December 1987, dealing with his job description and his managerial skills and his performance against the job allotted to him were signed by the respondent No. 6 himself.
5. Mr. Sengupta draws my attention towards the provisions of Sub-section (K) and (S) of Section 2 and Section 2A of the said Act. Relying upon the provisions of Section 10 of the said Act, Mr. Sengupta submits that the appropriate Government, i.e. the Central Government in the instant case, failed to form an opinion as to whether an industrial dispute was in existence between the petitioner bank and the respondent No. 6.
6. Mr. Barat appearing on behalf of the respondent No. 6 submits that after incorporation of Section 2A in the said Act the scope of Industrial Dispute has been enlarged. According to Mr. Barat a dispute between the employee and the employer can be deemed to be Industrial Dispute subject to determination of status of the employee. Such status of the employee is to be ascertained from the nature of the job actually the employee performs. This can only be done by the appropriate Tribunal. Since the conciliation officer was not vested with the power to decide the preliminary objection, the conciliation officer was right in keeping silent on the preliminary objection raised by the petitioner bank before him. According to Mr. Barat if there is any error in naming the parties or in framing the issues, the order of reference cannot be held to be bad. He strenuously argued that the Tribunal is the only competent forum to decide the preliminary objection raised by the petitioner bank.
7. I have heard the learned Counsels appearing for the respective parties and I have considered the materials on record. The first question to be answered in this case is whether it is open to this Court to go into the validity of the impugned order of reference in exercise of jurisdiction under Article 226 of the Constitution.
8. It is settled principles of law that the order of the appropriate Government acting under Sub-section (1) of Section 10 read with Sub-section (5) of Section 12 of the said Act is an administrative order and not a judicial or quasi-judicial one.
9. It is also settled principles of law that if the administrative decision of the appropriate Government is based on irrelevant, extraneous or on grounds not germane to exercise of power it is liable to be questioned in exercise of power of judicial review.
10. So, in my view, it is open to this Court; to examine the decision making process in this case to ascertain whether the determination of the Central Government was based on relevant considerations under the provisions of the said Act.
11. Section 12 of the said Act deals with duties of conciliation officers. In the event of failure on the part of the conciliation officer to arrive at a settlement of the dispute, the conciliation officer sends a report to the appropriate Government in accordance with the provisions of Sub-section (4) of Section 12 of the said Act. Sub-Section (5) of Section 12 of the said Act provides that in the event, on consideration of the report referred to in Sub-section (4) of Section 12 of the said Act, the appropriate Government is satisfied that there is a case for reference, it may make such reference. Where the appropriate Government does not make such reference it shall record and communicate to the parties concerned its reasons therefor. According to the provisions of Section 10 of the said Act where the appropriate Government is of opinion that, any industrial dispute exists or is apprehended, it may at any time, by order in writing refer it, inter alia, to a Tribunal.
12. Therefore, the provisions of Sub-section (5) of Section 12 of the said Act cast an obligation upon the appropriate Government to be satisfied that there is a case for reference. And in order to refer a dispute to a Tribunal in accordance with the provisions of Section 10 of the said Act, the appropriate Government must form an opinion that the dispute is an industrial dispute or difference as defined in Sub-section (k) of Section 2 of the said Act read with the provisions of Section 2A of the said Act. In order to come within the purview of the provisions of Section 2A, it must be a case of dismissal etc., of an individual workman as defined in Sub-section (s) of Section 2 of the said Act.
13. It is an admitted fact in this case that the petitioner bank raised preliminary objection as per communication dated January 24, 2000 before the conciliation officer as to the existence of any industrial dispute under the said Act in between the petitioner bank and the respondent No. 6. The relevant documents relating to the service of the respondent No. 6 were enclosed to that communication for consideration of the conciliation officer to decide the preliminary objection. I find from the report of the conciliation officer issued under Memo. No. 8/5/99- E.I. dated May 23, 2000 that, he did not arrive at a conclusion with regard to the same.
14. It is also an admitted fact that on receipt of the communication dated November 7, 2000 from the respondent No. 4, the petitioner bank raised preliminary objection regarding the maintainability of dispute under the provisions of the said Act. The specific objection of the respondent bank was based on materials to show that the respondent No. 6 was not "workman" under the provision of Sub-section (s) of Section 2 of the said Act. The communication dated December 29, 2000, of the respondent bank is quoted below:"December 29, 2000 Mr. Ajay Kumar, Desk Officer, Government of India/Bharat Sarkar Ministry of Labour.
Shram Mantralaya, New Delhi.
Dear Sir, This has reference to your memo No. L-12012/223/2000-IR(B.I), dated November 7, 2000, proposing to refer the purported Industrial Dispute raised by Sri Amit Kumar Roy Chowdhury, against his dismissal from the Bank, to the Central Government Industrial Tribunal on the following terms of reference, whether the action of management of Standard Chartered Grindlays Bank Limited, 41 Chowringhee Road, Calcutta 700 71, for dismissing Sri Amit Kumar Roy Chowdhury, Ex-Head Cashier with effect from June 15, 1999, on the charges of causing loss to the Bank to the tune of Rupees forty six lakhs twenty two thousand only is justified? If not what relief the workmen is entitled to?
Our objection to the above proposal is given below:
Amit Kumar Roy Chowdhury, since May 12, 1978 and till the time of his dismissal i.e. on June 15, 1999, was serving as a management staff of the Bank. At the time of his dismissal, on June 15, 1999, Sri Chowdhury's salary was Rs. 23,220/- per month as the Head Cashier of one of our largest branches at 41, Chowringhee, Calcutta and performed jobs of a managerial nature. Since Sri Amit Kumar Roy Chowringhee at the time of his dismissal was not a workman, a dispute regarding his dismissal cannot be an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, 1947 and therefore such alleged dispute is patently outside the jurisdiction of the Central Government Industrial Tribunal.
When the Regional Labour Commissioner (c) at, Calcutta, by his letter No. 8/5/99 E-1 dated December 22, 1999, proposed to initiate' conciliation proceedings in respect of the above alleged dispute, we by our letter dated January 24, 2000 objected to the said conciliation, since the alleged dispute was not at all maintainable in terms of Section 2A of the Industrial' Disputes Act, 1947, in as much as Amit Kumar Roy was not a 'workman' within the meaning of Section 2(s) of the Act. A copy of our letter dated January 24, 2000, to the Regional Labour Commissioner (c) along with all documents in support of our objection is annexed hereto for your perusal and we rely upon the contentions made in the said letter dated January 24, 2000, and adopt the same in our instant objection to your proposal to refer the purported dispute to the Central Government Industrial Tribunal.
We submit that without deciding and/or considering the aforesaid preliminary objection regarding the maintainability of the dispute raised by Sri Amit Kumar Roy Chowdhury, if the alleged dispute is referred to the Central Government Industrial Tribunal for adjudication of the dismissal on the point of reference as stated by you, it would be highly illegal and would result in irreparable loss and injury to the Bank, as it would open a flood gate of case where managerial staff, who are not workmen within the Industrial Disputes Act, 1947, would all raise, Industrial Disputes to get the protection of the Industrial Disputes Act, 1947, to which they are not at all entitled.
We submit that the alleged dispute raised by Sri Amit Roy Chowdhury is not an industrial dispute within the meaning of the Industrial Disputes Act, 1947 and entertainment of such dispute will be an abuse of the process of law.
Yours faithfully, Santunu Mukherjee Regional HeadShared Distribution, North & East
15. On receipt of the above communication it was incumbent upon the Central Government to consider the objection raised by the petitioner bank and to form its own opinion on germane considerations. Such opinion might be on subjective satisfaction of the Central Government. It was not required to be reflected in the impugned order of reference. But the Central Government was required to record such satisfaction before passing the impugned order of reference.
16. In order to examine the decision making process which was followed by the Central Government to pass the impugned order of reference, I directed the Learned advocate on record on July 20, 2006, to serve a notice upon the respondent No. 1 informing the date of hearing of this case. Pursuant thereto a notice was served upon the learned senior Central Government advocate, Ministry of law and Company Affairs at 4, Kiran Sankar Roy Road, Kollkata - 700001. None appeared before me on behalf of the respondent No. 1 to produce the records relating to the impugned order of reference. Had the preliminary objection been considered by the Central Government before passing the impugned order of reference, the relevant records would have been produced before me.
17. In view of the above, the petitioner bank cannot be allowed to face the consequence of the impugned order of reference.
18. With regard to the cases cited by Mr. Sengupta, i.e. the cases of Ram Bharosey Agarwal v. Har Swarup Maheswari , Orient Paper Mills Sarmik Congress v. State of Orissa and Ors. 1988-II-LLJ-75 (Ori-DB) Moolchand Kairati Ram Hospital Karmachari Union v. Labour Commissioner and Ors. reported in 1997 (1) CLR 256 and the case of Secretary, Indian Tea Association v. Ajit Kumar Barat and Ors. all the decisions are applicable in this case. It is open for the Court sitting in writ jurisdiction to examine as to whether the Central Government acted in accordance with the provisions of Clause (d) of Sub-section (1) of Section 10 of the said Act to refer industrial dispute to a Tribunal by passing an order of reference under the above section. In doing so the Court can examine the decision making process of the appropriate Government by verifying the records whether there is formation of the opinion as to the fact that industrial dispute exists or is apprehended in between the parties.
19. With regard to the decisions relied upon by Mr. Barat, I find that none of the above decisions is applicable in this case. In the case of State of Madras v. C.P. Sarathy and Anr. , admittedly there was existence of a dispute in terms of Sub-section (k) of Section 2 of the said Act. In the case of Jaswant Sugar Mills Ltd., Meerut v. Lakshmi Chand and Ors. , it was decided that a conciliation officer functioning under Clause 29 of the order issued by the Governor of Andhra Pradesh under provisions of the Andhra Pradesh Industrial Disputes Act, 1947, was not an Industrial Dispute constituted under the Industrial Disputes Act 1947. In the case of Bombay Union of Journalists and Ors. v. State of Bombay and Anr. , the appropriate Government refused to refer the dispute on the grounds that the management was not acted mala fide or vindictively and had not victimised the concerned workman for Trade Union activities in the matter of retrenchment of some workmen that order of reference was submitted of judicial review. In the case of S.K. Verma v. Mahesh Chandra and Anr. the industrial Tribunal examined the preliminary objection and passed an order that the development officers in Life Insurance Corporation were not workmen within the meaning of Section 2(s) of the said Act. The writ petition filed in Delhi High Court challenging the above order which, was dismissed then an appeal under Article 236 of the Constitution of India was filed. In case of M.P. Irrigation Karamchri Sangh v. State of M.P. and Anr. the State Government declined to refer a dispute to the Tribunal. That was subject matter of Scrutiny in course of judicial review. In case of Ram Avtar Sharma and Anr. v. State of Haryana and Anr. , it was held that if reasons given by the Government are irrelevant, extraneous, not germane to the decision, writ of mandamus could be issued directing the Government to reconsider the matter regarding legal validity of inquiry, sufficiency and adequacy of evidence in the enquiry and quantum of punishment. In the case of V. Veerarajan and Ors. v. Government of Tamil Nadu and Ors. , it was held that the appropriate Government must not take into account irrelevant considerations to take a decision to decline to pass an order of reference. In the case of Mihir Kumar Hazra Chowdhury v. Union of India and Ors. 1989-IILLJ-418, the question of Central Government's refusal to refer for adjudication an industrial dispute in the light of Section 2A, and 11A was examined. In the case of Abad Dairy Dudh Vitran Kendra Sanchalak Mandal v. Abad Dairy and Ors. 1993- III-LLJ (Suppl)-855 (SC) the State Government declined to refer a dispute to the Tribunal under the said Act. The appropriate Government was directed to pass an order of reference so that the Tribunal can take decision in the dispute including the preliminary question. In the case of Sultan Singh v. State of Haryana and Anr. AIR 1996 SC 1007 : 1996 (2) SCC 66 : 1996- I-LLJ-879 two questions arose, namely, (1) whether the State should hear the respondent/employer before making a reference; and (2) whether there was an order of reference by the State so as to entitle the employee to have the dispute adjudicated by the Tribunal. In the case of Secretary, Indian Tea Association v. Ajit Kumar Barat and Ors. (supra) it was held that the order declining reference was based on material on records. In the case of Mayarukshi Cotton Mills and Ors. v. Panchra Mayurakshi Cotton Mills Employees' Union , it was held that the order of reinstatement of workmen on account of not following procedures prescribed in Section 25F and 25G of the said Act were to be determined in appropriate proceedings under the said Act In the case of Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and Ors. , the power of the appropriate Government to decline reference was subject mater of judicial review. In the case of D.P. Maheshwari v. Delhi Adman and Ors. , the labour Court while deciding the preliminary issue considered the entire evidence on record and recorded the positive finding that the delinquent employee, whose services were terminated, was discharging the duties of a clerical nature and was a workman within the meaning of Section 2(s) of the said Act under Article 226 of the Constitution of India. The case was decided on the basis of that fact. I find none of the above cases cited by Mr. Barat supports his submission.
20. In view of the above discussion I, therefore, quash and set aside the impugned order of reference No. L-12012/223/ 2000-IR(B-l) dated February 8, 2001 passed by the Central Government I further direct the Central Government to reconsider the matter after taking into account the preliminary objection raised by the petitioner bank as per communication dated December 29, 2000 and by passing an order in accordance with the provisions of the said Act.
21. I make it clear that I have not entered into the merits of the case and the Central Government will be free to form an opinion on the basis of its findings and subjective satisfaction thereof.
22. The writ application is thus allowed.
23. There will be, however, no order as to costs.
24. Urgent xerox certified copy of this judgment, if applied for, be given to the parties, as expeditiously as possible, upon compliance with the necessary formalities in this regard.