Kerala High Court
Canara Bank Staff Union And Anr. vs Union Of India (Uoi) And Anr. on 5 February, 1998
Equivalent citations: (1998)ILLJ859KER
Author: Ar. Lakshmanan
Bench: Ar. Lakshmanan
JUDGMENT Ar. Lakshmanan, J.
1. Heard Mr. Ashok B. Shenoy for petitioners and Ms. Rahana Karthikeyan for the respondent. The first petitioner is a registered trade union of the workmen employed in the second respondent bank. Second petitioner is a work-man employed as Clerk of the second respondent. The Original Petition has been filed to quash Exts. P1, P3 and P6 orders and also for a mandamus directing the first respondent to refer the industrial dispute raised by the first petitioner vide Ext.P5 for adjudication to the Industrial Tribunal, and for a further direction commanding the second respondent to grant the second petitioner the sick leave applied by him and declined by the second respondent in pursuance of Exts.P1 and P3 orders and for other reliefs. Under Ext. P1 the petitioner was informed that medical leave applications not accompanied by medical certificates from the panel of doctors will not be considered. On receipt of Ext.P1, the second petitioner made a representation to the second respondent on June 11, 1990 stating that the instructions therein are contrary to the existing usual practice in the bank and that it affects the right of personal liberty. In the meantime the second respondent issued another letter under Ext. P3 dated June 16, 1990 substituting Dr. Joseph Mathai for Dr. Remani N. Rajan mentioned in Ext. P1. The petitioner also issued a Lawyer's notice to the second respondent calling upon them to withdraw the instructions in Exts. P1 and P3 and to follow the usual practice in the matter of grant of leave on medical grounds. Since the petitioner did not receive any favourable response for his objection to Exts. P1 and P3 he approached the Union and the Union in turn raised an industrial dispute under the provisions of the Industrial Disputes Act, 1947 demanding withdrawal of the instructions in Exts. P1 and P3. Conciliation proceedings under the provisions of the Industrial Disputes Act were held in dispute before the Assistant Labour Commissioner (Central), Eranakulam. However conciliation proceedings ended in a failure and therefore failure of conciliation report was sent to the first respondent by the Assistant Labour Commissioner under Section 12 Sub-Clause (4) of the Industrial Disputes Act, 1947. On receipt of the failure of conciliation report, the first respondent in exercise of powers under Section 10 of the Industrial Disputes Act declined to refer the dispute raised by the first petitioner for adjudication vide letter dated April 29, 1992, marked as Ext.P6, on the grounds stated therein which reads as below :-
No. 12012/442/91-IR(B.II) Government of India/Bharat Sarkar Ministry of Labour/Shram Mantralaya New Delhi dated April 29, 1992.
To
1. The Deputy General Manager, Canara Bank, Circle Office, Trivandrum.
2. The Assistant Secretary Canara Bank Staff Union Kerala Regional Committee 41/1757, Ernakulam-18.
Subject:- Industrial Dispute over alleged refusal of leave on medical ground to Sh. D. Devaraj by the management of Canara Bank.
Sir, I am directed to refer to the Failure of Conciliation Report No. 8(37)91-ALC/KM dated November 29, 1991 received from the Assistant Labour Commissioner (Central), Cochin, on the subject noted above and to say that the Central Government having considered the said report in terms of Section 12(5) of the Industrial Disputes Act, 1947 is of the opinion that the dispute is not fit for reference to the Industrial Tribunal for adjudication on the following grounds:
"Leave cannot be claimed as a matter of right and it is the discretion of the management depending upon the exigencies of the service and need to regulate the sanction or refusal of leave on such conditions, it may reasonably prescribe. It appears that Sh. Devaraj did not submit medical certificate from the panel doctor nominated by the management for the purpose, while claiming leave on medical grounds."
Yours faithfully, Sd/-
V.K. VENUGOPALAN Desk Officer Tel. 3718119 Copy forwarded to:
(1) Regional Labour Commissioner (C) Cochin.
(2) Asst. Labour Commissioner (C) Cochin (3) Guard Folder.
On receipt of Ext. P6 the first petitioner made a representation on June 2, 1992 to the first respondent submitting that their dispute is not for claim of leave as of right, but only over illegal, unilateral and arbitrary instructions issued by second respondent to the second petitioner alone contrary to the existing practice, bipartite settlement and service conditions prevalent in the Bank. It is stated that under the guise of exigencies the management cannot be allowed to trench upon the valuable rights available to the workman under the Constitution and the various bipartite settlements existing in the Banking Industry. It was also pointed out that a dispute over leave is an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, it being the terms of employment and conditions of labour of a workman and that the Government cannot decline reference of the dispute on grounds as mentioned in Ext. P6. Since no reply was received from the first respondent to Ext. P7 reminders were sent on December 15, 1992, June 10, 1993 and finally on December 6, 1993 requesting early re-consideration of the matter in the light of Ext. P7.
2. Original Petition is resisted by the respondent Bank. A counter affidavit has been filed denying the allegations contained in the O.P. by the Deputy General Manager, Trivandrum Circle. It is stated in the counter that the Bank has only insisted on submitting a medical certificate from a doctor on the panel of doctors of the Bank and therefore there is no violation of personal rights or fundamental rights of the petitioner. It is further stated that as per clause IX(4) of the Fourth Bipartite Settlement all sick leave can be granted only on production of medical certificate acceptable to the bank. It is also submitted that though Ext. P6 order was passed as early as on April 29, 1992 the present O.P. was filed with a delay of two years after Ext. P6 and therefore the Original Petition is liable to be dismissed as belated. In the counter affidavit it is also made clear that Exts. P1 and P3 instructions to produce medical certificate from the Bank's panel of doctors were intended to ascertain the genuineness of the reasons stated by the employee and the genuineness of the reasons given in the medical certificate. A reference was also made to Ext. R2(a) which was filed along with the counter affidavit wherein it is stated that the bank will meet the expenses for appearing before a doctor on the bank's panel.
3. Mr. Ashok B. Shenoy, learned counsel appearing for the petitioner raised the following submissions at the time of hearing: -
a) Ext. P6 order is vitiated for total non-application of mind by the first respondent while exercising the administrative powers conferred on him under Section 10 of the Industrial Disputes Act.
b) The appropriate Government cannot decline a reference on the pretext of discretion of the management for if it is accepted then none of the industrial disputes can be the subject matter of adjudication since in every dispute the discretion of the management is involved.
c) Dispute over leave would surely be an industrial dispute within the meaning of Section 2(k) of the Industrial Disputes Act, 1947.
d) While declining reference under Ext.P6 the first respondent has upheld that the management may reasonably prescribe conditions to regulate the sanction or refusal of leave. While so holding, the first respondent has failed to consider whether the impugned instructions questioned in the dispute are reasonable or not. By declining reference on the basis of the above finding the first respondent has inferred and taken it that the impugned instructions of the management are reasonable. This question was precisely for the Industrial Tribunal to adjudicate and the Government could not have arrogated itself the functions of the Tribunal while exercising the administrative functions under Section 10 of the Industrial Disputes Act. Ext.P6 order passed by the first respondent considering into the merits of the dispute and by determining the lis by itself is ultravires and illegal.
e) Exts.P1 and P3 orders are illegal and being contrary to the service conditions applicable to the workman as prescribed under the Canara Bank Service Code (Regulation 13).
f) Exts.Pl and P3 orders prescribing a different set of rules for the second petitioner workman alone, that too quite contrary to the service conditions and therefore violative of the mandates of equality.
g) Second petitioner workman has an unquestionable right to consult a doctor of his choice under the branch of his choice in which he believes and this right is obviously included in his fundamental right to life and also is part of personal liberty. By issuance of Exts.Pl and P3 orders the workman is being subjected to an unreasonable stipulation whereby he has to incur double expenses by forcing him to consult two doctors and pay two sets of fees to them one for treatment to his doctor of choice and second to doctor of bank's choice for certificate. This is quite unreasonable and illegal.
4. In reply to the above contentions it is submitted that there is no violation of personal right of fundamental rights of the petitioner and that as per Clause IX(4) of the Bipartite Settlement all sick leave can be granted only on production of a Medical Certificate acceptable to the Bank. It is also submitted that the present O.P. has been filed with a delay of two years after Ext.P6 order and therefore the O.P. is liable to be dismissed as belated and that Exts.P1, P3 and P6 orders are perfectly valid and are not liable to be quashed since they are only instructions issued by the Bank to its employee. It is further submitted that the second petitioner cannot claim the leave as a matter of right and that the second respondent is a nationalised bank and is having branches all over India and that therefore the Bank has every right to issue administrative instructions requesting the employees to appear before the Bank's doctor. My attention was invited to Ext. R2(a) wherein the Bank has clearly stated that the doctor's fees and T. A. if any will be paid to the employee concerned as per norms. It is further contended that the instructions to produce a medical certificate from the doctor on the Bank's panel cannot be a subject matter of an industrial dispute which would fall within the scope of Section 2(k) of the Act. In reply learned counsel has also specifically denied the contention of the learned counsel for the petitioner that the petitioner alone has been singled out and the instructions have not been issued to others. The instructions contained in Exts. P1 and P3 are issued not only to the second petitioner but such instructions were given to few other employees who used to be absent from duties frequently and indiscriminately on grounds of illness.
5. I have considered the rival submissions. I am of the view that the petitioner is bound by the Bipartite Settlement. Clause 13.33 of the first Bipartite Settlement dated October 19, 1966 reads as follows: -
"All sick leave shall be granted on production of a medical certificate acceptable to the Bank."
Reading of the above Bipartite Settlement would disclose that the employees shall be granted sick leave only on production of medical certificate acceptable to the Bank. Regulation 13 of the Canara Bank Service Code reads as follows ;-
13. (1) When leave is applied for on the ground of illness or sickness, a certificate from a Registered practitioner or a Government Medical Officer or registered Vaid or Hakim should always be produced in support of the application for leave unless the Sanctioning Authority expressly waives it.
(2) The Sanctioning Authority shall have the right of requiring the employee who is applying for leave on the ground of sickness or illness to be examined by a medical man of his choice, notwithstanding that a certificate required by Clause (1) of this Regulation has been produced by the employee. But the expenses of such examination shall be borne by the Bank.
(3) No employee who has been granted leave on medical certificate may return to duty without first producing a medical certificate of fitness.
The above regulation prescribes the conditions for leave on grounds of illness and sickness. Regulation Sub-clause (1) of the Canara Bank Service Code stipulates that when leave is applied on the ground of illness or sickness, a certificate from any registered medical practitioner or a Government Medical Officer or a registered Void or Hakim is to be produced. As pointed out by the learned counsel for the petitioner Regulation 13(1) insists for a Certificate from a particular doctor of their choice. But Regulation 13(2) of the Code stipulates that the sanctioning authority shall have the right of requiring the employee applying for leave on grounds of illness or sickness to be examined by a medical man of his choice notwithstanding the certificate produced by the employee. However in such case the Clause stipulates that the expenses shall be borne by the Bank. Regulation 13(2) therefore enables the Bank to have the employee examined by a doctor of their choice at their expenses and not at the expense of the employee. Therefore the contentions of the learned counsel that the submission of leave applications along with the medical certificate from a particular doctor is ultra vires cannot be accepted at all. As already noticed Regulation 13 Sub-clause (2) clearly stipulates that the Bank will bear the expenses in the event of the Bank requiring the employee who is applying for leave on the ground of illness or sickness to be examined by a medical officer of his choice. I am therefore of the view that Exts.P1 and P3 orders are not arbitrary and discriminatory as contended by the learned counsel for the petitioner. In the counter affidavit it has been clearly stated that similar circulars have been issued to various other employees of the Bank which has not been denied by the petitioner by filing a reply affidavit. Therefore the contention of the petitioner that he alone has been subjected to unilateral stipulations in the matter of availing sick leave cannot at all be countenanced. Exts.P1 and P3 orders do not prescribe a different set of rules for the second petitioner alone. It is not contrary to the service conditions or violative of the mandates of equality, as alleged. The petitioner workman again contended that he has an unquestionable right to consult a doctor under the branch of his choice in which he believes which right is obviously included in his fundamental right to life and is also a part of his personal liberty. The above argument, in my view is far-fetched. In the counter affidavit it is mentioned that the petitioner was in the habit of absenting from duty frequently on medical grounds for a large number of days during various years. As such occasions were on the increase the bank was compelled to issue instructions contained in Exts.P1 and P3. I am of the view that the Bank has got every right to issue such instructions to is employees in exercising its administrative power. As already noticed the petitioner is bound by the terms contained in the Bipartite Settlement wherein it is specifically mentioned that all sick leave can be granted only on production of a medical certificate acceptable to the Bank. From the above provision it is clear that there are sufficient reasons for the request of an employee for sick leave. The Bank will be justified in this regard of medical certificate submitted by him and in refusing to grant leave. In such case I am of the view that the Bank is also justified in insisting on the petitioner and the persons like the petitioners to get themselves examined by the doctor of the Bank's choice. Refusal by the employee to medical examination by the doctor chosen by the Bank, as rightly pointed out by the counsel for the respondent amounts to misconduct and rendering the employee concerned liable for disciplinary action. As pointed out by the learned counsel for the respondent that if an employee of the Bank absents himself from duty indiscriminately and frequently on the ground of illness it will affect the smooth functioning and the customer service of the Bank. It will also affect the discipline and morale of other employees.
6. As regards the submission of the learned counsel for the petitioner in regard to the conciliation proceedings the Assistant Labour Commissioner after enquiry has forwarded the failure report to the Ministry of Labour, Government of India and the Government after going through the report informed the petitioner union that the dispute was not fit for reference for adjudication. Learned counsel for the petitioner contended that the question which was precisely for the Industrial Tribunal has been adjudicated by the Government and therefore the order is illegal. He would further submit that the Government cannot direct itself the functions of the Tribunal while exercising the administrative functions under Section 10 of the Industrial Disputes Act. Ext. P6 order passed by the first respondent on the merits of the dispute is ultra vires and illegal, since the Government has determined the lis by itself. In support of his contention learned counsel for the petitioner cited Telco Convoy Drivers Mazdoor Sangh and Anr. v. State of Bihar and Ors. (1989-II-LLJ-558) (SC), The M.P. Irrigation Karamchari Sangh v. The State of M. P. and Anr. (1985-I-LLJ-519) (SC) and Jayanarayan v. Union of India (1997-II-LLJ-1034) (Ker). The Supreme Court in Telco Convoy's case held as follows at p.561:
"Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is whether the persons raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of the administrative function under Section 10(1) of the Act. As has been held in M. P. Irrigation Karamchari Sangh's case (supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and to allow the Government to do so would be to render Section 10 and Section 12(5) of the Act nugatory."
The second decision cited by the learned counsel for the petitioner also been referred to in this judgment. The Supreme Court in M.P. Irrigation Karamchari Sangh's case (supra) held that the adjudication of the demands made by workmen should be left to the Tribunal to decide and that Section 10 permits appropriate Government to determine whether dispute exists or is apprehended and then refer it for adjudication on merits. The Supreme Court interfered with the order of the Government in that case since the Government had virtually adjudicated the very demand itself on merits. Therefore the Supreme Court held that the conclusion so arrived at robs the employees of an opportunity to place evidence before the Tribunal and to substantiate the reasonableness of the demand.
7. Learned single Judge of this Court has also held in(1997-II- LLJ-1034) (supra) that the Government cannot go into the merits of disputes. In the instant case the Government while passing the order declining the reference has not adjudicated the matter on merits as contended by the learned counsel for the petitioner. The order declining the reference only discloses the reasons for declining the reference which is incumbent on the Government and therefore I am of the view that the same cannot be equated with adjudication. The order also discloses that the Central Government considered the report of the Assistant Labour Commissioner in terms of Section 12(5) of the Act and therefore was of the opinion that the dispute is not fit for reference to the Industrial Tribunal for adjudication. Reference of the petitioner's dispute has been declined vide Ext.P6 order on the ground that leave cannot be claimed as a matter of right, that it is the discretion of the Government and that therefore the management may reasonably prescribe conditions to regulate the sanction or refusal of leave. I am therefore of the view that the Government has to necessarily refer the reasons thereof. Section 10 read with Section 12(3) of the Act confers very wide discretion on the appropriate Government either to refer or to refuse to refer an industrial dispute. In this case the Government have bonafidely exercised its discretion and had decided to decline the reference. A Division Bench of the Madras High Court in Workmen of Sundaram Industries Ltd. v. Sundaram Industries Ltd. (1997-II-LLJ-1090) held that while passing the administrative orders under Section 12(5) of the Act the Government is not prevented from considerating the merits of the dispute raised by the workers prima facie. Section 12(5) of the Act does not make it obligatory on the part of the Government to make reference of all disputes raised by the workmen automatically. It has got discretion to refer or not to refer the dispute. Therefore while considering the prima fade case on merits the Government discloses the reasons relevant to the dispute. This, in my opinion, would not tantamount to adjudication as alleged by the petitioner union.
8. The impugned order in this case was passed under Ext.P6 on April 29, 1992. The petitioner has approached this Court by filing the above O.P. only on March 1, 1994 i.e. after a delay of two years. In Raman Menon v. Cochin Devaswom Board 1957 KLT 1082 learned single Judge of this Court held that repeated petitions may be indicative of the petitioner's persistence or optimism but they cannot possibly provide an excuse for the delay that has occurred. As already noticed the Ext. P6 order was passed on April 29, 1992 and two years period have elapsed before this O.P. was filed in this Court and therefore that should be sufficient to entail the dismissal of the O.P. on the ground of laches. In a very recent judgment of the Supreme Court reported in State of Haryana and Ors. v. Miss. Ajay Walia (1998-I-LLJ-80) the Apex Court has held that the representations repeatedly given to various authorities do not furnish fresh cause of action to file writ petition and that the High Court is wholly unjustified to have entertained and allowed the writ petition. The appeal was accordingly allowed and the judgment of the High Court was set aside. In my opinion Exts. P1 and P3 are only instructions issued to the second petitioner. He was informed that he has to produce a medical certificate from a doctor on the Bank's panel if he requires leave on medical grounds. He was also told that if he does not produce medical certificate from the doctor on Bank's panel he will not be granted leave. These instructions at any stretch of imagination cannot be a subject matter to raise a dispute. It is settled law that no employee has right to take leave indiscriminately and against the rules. The petitioner in my opinion has not shown in what manner the Bank has violated any rules. The alleged facts did not constitute a dispute. The Bank, therefore, in my opinion is justified in issuing instructions to produce medical certificate from a doctor on the Bank's panel and that instruction to produce a medical certificate from the doctor on the Bank's panel cannot be a subject matter of an industrial dispute. At the time of hearing learned counsel for the petitioner submitted that Ext. R2(a) had been issued only for a particular instance, and that it does not say that the Bank will meet the expenses for appearing before a doctor on the Bank's panel whenever the Bank wants the employee to appear before a doctor on the Bank's panel. In the counter affidavit it has been clearly stated that the Bank will meet the expenses for appearing before a doctor on the Bank's panel. In Ext.R2(a) also it is stated that the doctor's fees and T.A. if any will be paid as per norms. Therefore I make it clear that the petitioner and the persons similarly placed like the petitioner will be entitled to doctor's fees and T. A. if any as per the norms if the Bank wants the employees to appear before a doctor on the Bank's panel. There are no merits in the Original Petition. Original Petition therefore fails and is dismissed. No costs.