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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
BHARGAV D. KARIA, J.
Junagadh District Cooperative Bank Ltd. – Petitioner
Versus
Gujarat Bank Workers Union – Respondent
Special Civil Application No. 17274 of 2019, Civil Application (For Direction) No. 1 of 2023
Decided On : 05-04-2024
Recruitment - Industrial Relations - Gujarat Industrial Relations Act, 1946 - Section 42(1), Section 46(3), Schedule II, Schedule III
Fact of the Case:
The petitioner, a cooperative bank, challenged orders denying recruitment of clerks and peons under the Gujarat Industrial Relations Act, 1946. The respondent union alleged breach of a settlement and illegal change in recruitment process without notice.
Finding of the Court:
The court held that the petitioner was not required to issue a notice of change for recruitment of clerks and peons, as it fell under Item No. 6(i) of Schedule III, and not under Item No. 2 of Schedule II. The settlement with employees in 2017 was not with a registered union and was out of the Act's purview.
Issues: The main issue was whether the petitioner was required to issue a notice of change for recruitment, and the validity of the settlement with employees in 2017.
Ratio Decidendi: Recruitment of clerks and peons fell under Item No. 6(i) of Schedule III, not under Item No. 2 of Schedule II, and thus did not require a notice of change. The settlement in 2017 was not with a registered union and was not within the Act's purview.
Final Decision: The court quashed the orders denying recruitment and allowed the petitioner to undertake recruitment for clerks and peons without issuing a notice of change. The petitioner was directed to follow the recruitment process recommended by NABARD.
JUDGMENT :
BHARGAV D. KARIA, J.
1. Heard learned Senior Advocate Mr. K.M. Patel with learned advocate Mr. Varun Patel for the petitioner and learned Senior Advocate Mr. Shalin Mehta with learned advocate Ms. Parul P. Vasavada for the respondent.
2. Rule returnable forthwith. Learned advocate Ms. Parul Vasavada waives service of notice of rule on behalf of the respondent.
3. By this petition under Article 227 of the Constitution of India, the petitioner has challenged the order dated 27.06.2019 passed by the Industrial Court, Rajkot in BIR Appeal (IC) No. 3 of 2019 and order dated 11.02.2019 passed by the Labour Court, Junagadh in BIR Application No. 1/2018.
4. Brief facts of the case are that the petitioner - Junagadh District Cooperative Bank Ltd. is registered under the provisions of Gujarat Cooperative Societies Act, 1961 and is engaged in banking business and having head office at Junagadh and 44 branches at different places in Junagadh, Porbandar and Gir Somnath Districts.
4.1 Grievance of the petitioner is concerned with regard to the impugned orders denying the petitioner to recruit clerks and peons in the bank under the provisions of the Gujarat Industrial Relations Act, 1946 (For short “the Act”) originally known as the Bombay Industrial Relations Act, 1946.
4.2 It is the case of the petitioner that prior to the impugned orders passed in the proceedings, there was previous litigation with regard to settlement dated 16.01.2002 between the parties. Such settlement was for the period from 01.07.2001 to 30.06.2005 and on expiry of the period, the respondent Union issued notice of change in the year 2007 desiring change in wage structure and other conditions of service of employees and filed Reference (IT) No. 1/2007 before the Industrial Court, Rajkot. The dispute pursuant to notice of change of bank was also registered as Reference (IT) No. 3/2007.
4.3 Both the references were proceeded on the interim order stage, wherein Industrial Court by order dated 04.12.2013 partly allowed the injunction application of the respondent Union by directing that the appointment to be made will be on temporary basis and subject to outcome of the Reference.
4.4 The petitioner bank challenged the order of injunction before this Court by preferring Special Civil Application No. 18330/2013 and respondent Union challenged the order by preferring Special Civil Application No. 16120/2013. As the matter was not settled between the parties, about 228 employees filed writ petition being Special Civil Application No. 2188/2016 challenging the order dated 31.12.2015 by which application for separate appearance was not permitted by the Industrial Court.
4.5 Thereafter all members of employees resigned from the membership of the respondent union and arrived at amicable settlement with the bank on 30.06.2017. Accordingly, both the references were withdrawn as per the award dated 15.06.2017 and the pending litigation was also withdrawn before this Court.
4.6 The petitioner bank thereafter on 10.05.2018 published an advertisement for recruitment for the post of Deputy Manager, Senior Officer, Junior Officer, clerk and peon to fill up 154 vacancies as there was acute shortfall in the required staff due to vacancies arising out of promotions, retirement and also requirement of opening of new branches permitted by National Bank for Agriculture and Rural Development (For short “NABARD”). It is the case of the petitioner that at managerial and officers’ level, the petitioner bank is required to continue incumbents of the posts of Deputy Manager, Senior Manager, Junior Officer who have attained the age of superannuation by extending their term.
4.7 The respondent Union claiming to be representing the employees of the petitioner bank as representative Union under the provisions of the Act filed BIR Application No. 1 of 2018 before the Labour Court, Junagadh alleging that proposed recruitment is in breach of last settlement with the respondent Union on 16.01.2022 and, there
The main legal point established was that recruitment of clerks and peons fell under Item No. 6(i) of Schedule III, not requiring a notice of change, and the settlement in 2017 was not within the Act....
The court established that the burden of proof regarding employee numbers lies with the Union, and failure to provide such evidence negates the requirement for a notice of change under the Gujarat In....
The main legal point established in the judgment is the obligation of the Respondent Bank to fulfill its commitments under the Memorandum of Settlement and to ensure a fair and inclusive recruitment ....
Prolonged temporary engagement of workers on perennial duties against admitted vacancies, denying permanency and equal benefits despite continuous service, constitutes unfair labour practices under I....
Circular or resolution passed by Government would not apply to the staff of the Corporation as they are covered under special law, i.e. GIDC (Staff) Regulation, 1963.
The court mandated adherence to established recruitment procedures under Rule 9(A), quashing any conflicting directives to ensure timely fulfillment of the recruitment process as published in the ori....
The main legal point established in the judgment is the entitlement of long-serving employees to be treated as permanent regular employees and the inapplicability of new recruitment conditions to exi....
The amendment to a statutory provision cannot have a retrospective effect on a recruitment process initiated prior to the amendment.
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