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1990 DIGILAW 441 (PAT)

State Bank of India v. Union of India

1990-12-11

N.P.SINGH, SACHCHIDANAND JHA

body1990
JUDGMENT :- N. P. Singh, J. This Letters Patent Appeal has been filed on behalf of the State Bank of India (herein after referred to as 'the Bank') for setting aside the judgment of a learned Judge of this Court, dismissing the writ application filed on behalf of the appellant Bank. The connected writ application had been filed for quashing an order dated 14.10.1985 issued by the Central Government in exercise of the powers under section 10 (1) (d) of the Industrial Disputes Act, (hereinafter referred to as 'the Act'). 2. The following questions were referred to the tribunal for adjudication:- "Whether the action of the management of State Bank of India to transfer the three under mentioned workmen from Monghyr Branch to the branches shown against their names is justified ? (i) Shri Ashok Kumar, Clerk, transferred to Colgong Branch. (ii) Shri T. K. Bose, Clerk, transferred to Banka Branch. (iii) Shri Bindeshwari Prasad Yadav, Head Clerk, transferred to Sheikhpura Branch. If not to what relief the workmen ale entitled ?" 3. According to the Union of the Employees of the Bank the three workmen should not have been transferred from Munger where they bad been posted; in any case they should have been transferred to places nearer to the town of Munger as indicated by them in their letters dated 3.9.1985 addressed to the Regional Manager of the Bank requesting to withdraw the orders of their transfer. Pursuant to the aforesaid letters dated 3.9.1985 the Regional Manager of the Bank recalled the earlier order of transfer of the three workmen and issued fresh orders of transfer dated 23.9.1985 transferring them to places other than mentioned in the original order of transfer. It may be mentioned that these places were not the place mentioned by the three workmen in their aforesaid letters dated 3rd September, 1985, where they wanted to be transferred Copies of the aforesaid letters have been enclosed to the writ application. 4. The aforesaid three employees of the Bank had been transferred by the Bank from Munger 10 Colgong Branch, Jamui Branch and Sheikhpura Branch respectively by orders dated 21.11.1984. In connection with the aforesaid transfer a dispute was raised. It is said that in view of the dispute raised, conciliation proceedings were held between the Bank and the respondents. The proceedings were adjourned to 4.10.1985. In connection with the aforesaid transfer a dispute was raised. It is said that in view of the dispute raised, conciliation proceedings were held between the Bank and the respondents. The proceedings were adjourned to 4.10.1985. On that date the management attended the proceeding but none represented the Union before the Assistant Labour Commissioner (Central) Patna. The management informed the Assistant Labour Commissioner that on the request of the concerned workmen their places of transfer had been changed. As none appeared on behalf of the Union on that date, the Assistant Labour Commissioner addressed a letter dated 28.1.1986 to the Secretary to the Government of India, Ministry of Labour, saying that in view of the places of transfer of the workmen aforesaid having been changed, perhaps, no dispute existed and the matter be treated as closed. Before that as already stated above on 14.10.1985 reference was made by tile Central Government to the Tribunal. 5. According to the Bank when the original order of transfer in respect of three workmen had been recalled by an order dated 23.9.1985, there was no occasion on the part of the Central Government to refer the dispute relating to original dispute arising out of the order of transfer dated 21.11.1984, as such, this Court in exercise of the power under Articles 226 and 227 of the Constitution should either quash the order of reference to the tribunal or issue a writ of prohibition directing the tribunal not to proceed with toe hearing of the reference. 6. The learned Judge has pointed out from the counter affidavit filed on behalf of the Employees' Union that the stand of the Union is that merely by withdrawal of the original order of transfer and issuance of fresh order of transfer the dispute has not come to an end. It has also been pointed out by the learned Judge that in the second order of transfer the concerned workmen had not been posted to places suggested by them. Thereafter learned Judge bad referred to several cases of the Supreme Court where it has been pointed out that the High Court should be very reluctant in interfering with the orders making reference of the disputes to the Industrial courts. On the aforesaid finding the writ application has been dismissed saying that the Bank will be at liberty to raise all questions before the tribunal itself. 7. On the aforesaid finding the writ application has been dismissed saying that the Bank will be at liberty to raise all questions before the tribunal itself. 7. In the present appeal the same stand has been taken on behalf of the bank that in view of the change in the places of postings of the three employees of the Bank the tribunal cannot proceed to adjudicate the dispute arising from the original orders of transfer of such employees. It was pointed out that not only the Assistant Labour Commissioner by his aforesaid letter dated 28.1.1986 informed the Government of India that in view of the subsequent events no dispute existed, even Government of India by a letter dated 1.3.1988 informed the Presiding Officer of the tribunal that it has been brought to the notice of the' Government of India 'that on the request of the three workers, the State Bank of India had changed their places of transfer to branches nearer to Monghyr and the employees were not required to join the places where they had been transferred originally referred in the above adjudication order. In view of this development it is felt that the cause of the dispute which necessitated the issue of order dated the 14th October, 1985 no more exists." A copy of that letter has been filed in this appeal along with a supplementary affidavit on behalf of the Bank in the application for grant of stay. 8. On the basis of the aforesaid two communications dated 28.1.1986 addressed by the Assistant Labour Commissioner to the Government of India and the communication dated 1.3.1 988 addressed by the Government of India to the Presiding Officer of the tribunal, on behalf of the Bank it was submitted that the reference made to the tribunal bas become in-fructuous, as such, the writ application filed on behalf of the petitioner Bank should be allowed. 9. The learned counsel appearing for the respondent- Union contested the claim on behalf of the Bank that due to subsequent events the dispute, which has been referred to the tribunal, has come to an end and, as such, the reference to the tribunal has become in-fructuous. 9. The learned counsel appearing for the respondent- Union contested the claim on behalf of the Bank that due to subsequent events the dispute, which has been referred to the tribunal, has come to an end and, as such, the reference to the tribunal has become in-fructuous. It was pointed out that in the communication dated 28.1.1986 addressed by the Assistant Labour Commissioner to the Government of India the report that in view of the subsequent development no dispute existed was made in absence of the representatives of the Union, who could not attend the proceeding on 4.10.1985. In other words, that report was made on the statements made on behalf of the Bank in absence of the representatives of the Union. Regarding the communication dated 1.3.1988 addressed by the Government of India to the tribunal it was pointed out that on face of it is based on the report aforesaid submitted by the Assistant Labour Commissioner. 10 Whether a dispute exists, is a question of fact, which has to be decided on the materials produced on behalf of the contesting parties. Under section 10 (1) of the Act, a reference can be made to a Labour Court or tribunal for adjudication only if the appropriate Government is of the opinion that any industrial dispute exists or is apprehended. As such, the appropriate Government has to form an opinion as to whether an industrial dispute exists which requires to be referred for adjudication to 8 Labour court or tribunal on the materials placed before the appropriate Government. On several occasions, the Supreme Court has considered the nature of the function of the appropriate Government under section 10(1) of the Act. It has been held that appropriate Government while making a reference is performing an administrative Act, and merely because it has to form an opinion in respect of factual existence of an industrial dispute before a reference is made, it does not make any difference in the character of the exercise of power being administrative. That is why Courts have been reluctant in interfering with an order of reference under section 10(1) of the Act. One of the earliest cases of the Supreme Court on the point, in the case of The State of Madras v. C. P. Sara thy and another (AIR 1953 Supreme Court. That is why Courts have been reluctant in interfering with an order of reference under section 10(1) of the Act. One of the earliest cases of the Supreme Court on the point, in the case of The State of Madras v. C. P. Sara thy and another (AIR 1953 Supreme Court. 53) it was pointed out :- "But, it must be remembered that in making a reference under S. 10 (1) the Government is doing an administrative Act, and the fact that it has to form an opinion as to the actual existence of an industrial dispute as a preliminary step to the discharge of its function does not make it any the less administrative in character. The Court cannot, therefore, canvass the order of reference closely to see if there was any material before the Government to support its conclusion, as if it was a judicial or a quasi judicial determination. No doubt, it will be open to a party seeking to impugn the resulting award to show that what was referred by the Government was not an industrial dispute within the meaning of the Act, and that, therefore, the tribunal had no jurisdiction to make the award. But, if the dispute, was an industrial dispute as defined in the Act. its factual existence and the expediency of making a reference in the circumstances of a particular case arc matters entirely for the Government to decide upon, and it will not be competent for the Court to held the reference bad and quash the proceedings for want of jurisdiction merely because there was, in its opinion no material before the Government on which it could have come to an affirmative conclusion on those matters." 11. Reiterating the same view in the case of Shambhu Nath Goyal v. Bank of Baroda (AIR 1978 Supreme Court, 1088) it was pointed out:- "The power conferred by S. 10 (1) on the Government to refer the dispute can be exercised not only where an industrial dispute exists but when it is also apprehended. From the material placed before the Government. From the material placed before the Government. Government reaches an administrative decision whether there exists an industrial dispute or an industrial dispute is apprehended and in either event it can exercise its power under S. 10 (1)." It was impressed that it will not be competent far the Court to hold the reference bad and quash the proceedings for want of jurisdiction merely because in its opinion there was no material before the Government on the basis of which it would have come to conclusion that there existed an industrial dispute. 12. In the present case the appellant-Bank had invoked the jurisdiction of this Court under Articles 226 and 227 of the Constitution for quashing the reference made by the Central Government on 14.10.1985 to the tribunal on the ground that before that on 23.9.1985 the Bank bad issued another order of transfer in respect of the three employees and that fact was brought to the notice of the Assistant Labour Commissioner during the conciliation proceeding on 4.10. 1985. In other wards, because of the change of the pl4ces of posting by order dated 23-9-1985 no reference under section 10 (1) of the Act, should have been made by the Central Government to the tribunal. In my view, if this Court enquires into the question as to whether before the reference under section 10 (1) of the Act, was made by the Central Government any industrial dispute existed or not, which it will be against the binding judicial pronouncement of the Supreme Court referred to above. 13. Apart from that, as has been pointed ant above, respondent- Union is seriously contesting the claim of the Bank that merely by substituting another order of transfer in respect of three employees the dispute has came to 80 end. According to them, their basic it and is that the workmen concerned could not have been transferred from the place where they had been initially posted and in any case if the Bank wanted to settle the dispute it should have posted to the place suggested by them in their aforesaid communication dated 3-9-1985 (Annexure-3 series to the writ application). I am consciously not expressing any opinion on this question because that will prejudice either party before the tribunal, which has to examine the contentions of the respective parties in connection with the reference made to it. 14. I am consciously not expressing any opinion on this question because that will prejudice either party before the tribunal, which has to examine the contentions of the respective parties in connection with the reference made to it. 14. The learned Judge while dismissing the writ application of the appellant-Bank has rightly referred to several judgments of the Supreme Court where it has been pointed out that High Court in exercise of jurisdiction under Articles 226 and 227 should not embark upon a preliminary enquiry in respect of legality or otherwise of a reference of dispute to the tribunal. It has also been pointed out that by this process the very purpose of referring the dispute for early decision to the Labour Court or tribunal is frustrated. In the case of Management of Express Newspapers (Private) Ltd., Madras v. The Workers and others (AIR 1963 Supreme Court, 569) it was pointed out:- “The High Court undoubtedly has jurisdiction to ask the Industrial Tribunal to stay its hands and to embark upon the preliminary enquiry itself. The jurisdiction of High Court to adopt this course cannot be and is indeed not disputed. But would it be proper for the High Court to adopt such a course unless the ends of justice seem to make is necessary to do so? Normally, the questions of fact, though they may be jurisdictional facts the decision of which depends upon the appreciation of evidence, should be left to be tried by the Special Tribunals constituted for that purpose. If and after the Special Tribunals try the preliminary issue in respect of such jurisdictional facts, it would be open to the aggrieved party to take that matter before the High Court by a writ petition and ask for an appropriate writ." Again in the case of the Cooper Engineering Ltd. v. P. P. Mandhe (AIR 1975 Supreme Court, 1900) it was said :- "We should also make it clear that there will be no justification for any party to stall the final adjudication of the dispute by the Labour Court by questioning its decision with regard to the preliminary issue when the matter, if worthy, can be agitated even after the final award. It will be also legitimate for the High Court to refuse to intervene at this stage. It will be also legitimate for the High Court to refuse to intervene at this stage. We are making these observations in our anxiety that there is no undue delay in industrial adjudication." In the well known case of D. P. Naheshwari v. Delhi Admn. and others (AIR 1984 Supreme Court, 153), it was pointed out as follows :- "It was just the other day that we were bemoaning the unbecoming devices adopted by certain employers to avoid decision of industrial disputes on merits. We noticed how they would raise various preliminary objections, invite decision on those objections in the first instance, carry the matter to the High Court under Article 226 of the Constitution and to this Court under Article 136 of the Constitution and delay a decision of the real dispute for years, sometimes for over a decade. Industrial peace, one presumes, hangs in the balance in the meanwhile. We have now before us a case where a dispute originating in 1969 and referred for adjudication by the Government to the Labour Court in 1970 is still at the stage of decision on a preliminary objection. There was a time when it was thought prudent and wise policy to decide preliminary issues first. But the time appears to have arrived for a reversal of that policy. We think it is better that tribunals, particularly those entrusted with the task of adjudicating labour disputes where delay may lead to misery and jeopardise industrial peace, would decide all issues in dispute at the same time without trying some of them as preliminary issues. Nor should High Courts in the exercise of their jurisdiction under Art. 226 of the Constitution stop proceedings before a Tribunal so that a preliminary issue may be decided by them." 15. Accordingly, this appeal is dismissed. In the circumstances of the case, however, there shall be no order for costs. Sachchidanand Jha, J. I agree. AS. Application dismissed.