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2006 Supreme(Cal) 528
High Court Of Calcutta
DEBASISH KAR GUPTA
STANDARD CHARTERED GRINDLAYS BANK LIMITED - Appellant
Versus
UNION OF INDIA - Respondent
W. P. 744 Of 2001
Decided On : 08/22/2006
BARAT, D.Sengupta, M.Gupta, P.S.SENGUPTA
The Central Government must consider preliminary objections regarding the maintainability of a dispute, including the status of the employee as a 'workman' under Section 2(s) of the Industrial Disputes Act, 1947, before referring a dispute to a Tribunal for adjudication.
Headnote:
INDUSTRIAL DISPUTES ACT - REFERENCE OF DISPUTE - JURISDICTION - CENTRAL GOVERNMENT - PRELIMINARY OBJECTION - WORKMAN STATUS - JUDICIAL REVIEW: The Central Government's order referring a dispute to a Tribunal for adjudication under Section 10 of the Industrial Disputes Act, 1947, is an administrative order subject to judicial review. The Central Government must form an opinion that an industrial dispute exists or is apprehended before referring a dispute to a Tribunal. The Central Government must consider preliminary objections regarding the maintainability of a dispute, including the status of the employee as a 'workman' under Section 2(s) of the Act. Failure to consider preliminary objections and form an opinion on germane considerations renders the order of reference liable to be quashed.
Fact of the Case:
The petitioner bank, Standard Chartered Grindlays Bank Ltd., challenged the legality and validity of the Central Government's order of reference No. L-12012/223/2000-IR (B-1) dated February 8, 2001, referring the dispute relating to the dismissal of the respondent No. 6 to the respondent No. 5 for adjudication. The respondent No. 6 was appointed as a clerk-cum-cashier in the petitioner bank in 1971 and was promoted to the post of 'Head Cashier on Special Rates of Pay, Grade-III' in 1992. The petitioner bank initiated disciplinary proceedings against the respondent No. 6 on charges of causing a loss of Rs. 46 lakhs to the bank and dismissed him from service in June 1999. The respondent No. 6 raised objections to the dismissal and the matter was referred to the Regional Labour Commissioner (Central) for conciliation proceedings. The conciliation officer submitted a failure of conciliation report to the Central Government and proposed to refer the dispute to the Central Government Industrial Tribunal-cum-Labour Court, Calcutta for adjudication.
Finding of the Court:
The Court held that the Central Government failed to consider the preliminary objection raised by the petitioner bank regarding the maintainability of the dispute, including the status of the respondent No. 6 as a 'workman' under Section 2(s) of the Industrial Disputes Act, 1947. The Court found that the Central Government did not record its satisfaction that an industrial dispute existed or was apprehended before passing the impugned order of reference. The Court held that the Central Government's failure to consider the preliminary objections and form an opinion on germane considerations rendered the order of reference liable to be quashed.
Issues: 1. Whether the Central Government's order of reference of a dispute to a Tribunal for adjudication under Section 10 of the Industrial Disputes Act, 1947, is subject to judicial review? 2. Whether the Central Government must form an opinion that an industrial dispute exists or is apprehended before referring a dispute to a Tribunal? 3. Whether the Central Government must consider preliminary objections regarding the maintainability of a dispute, including the status of the employee as a 'workman' under Section 2(s) of the Act?
Ratio Decidendi: 1. The Central Government's order of reference of a dispute to a Tribunal for adjudication under Section 10 of the Industrial Disputes Act, 1947, is an administrative order subject to judicial review. 2. The Central Government must form an opinion that an industrial dispute exists or is apprehended before referring a dispute to a Tribunal. 3. The Central Government must consider preliminary objections regarding the maintainability of a dispute, including the status of the employee as a 'workman' under Section 2(s) of the Act. 4. Failure to consider preliminary objections and form an opinion on germane considerations renders the order of reference liable to be quashed.
Final Decision: The Court quashed and set aside the Central Government's order of reference No. L-12012/223/2000-IR (B-1) dated February 8, 2001, and directed the Central Government to reconsider the matter after taking into account the preliminary objection raised by the petitioner bank and by passing an order in accordance with the provisions of the Industrial Disputes Act, 1947.
( 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-1 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-III)" 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
