Raju, J.@mdashThe above appeals and the Writ Petitions have been at the common request of the learned counsel appearing on either side, heard
together since not only the parties to the proceedings are one and the same, but the legal issues involved for consideration are also identical and
similar.
2. Writ Appeal No. 108/1998 has been filed against the interim orders passed by a learned single Judge of this Court dated November 19, 1997
in W.M.P. Nos. 19444/1996 and 9505/1997 in W.P. No. 14251/19%, wherein the learned single Judge was pleased to vacate the interim order
earlier granted on the ground that there was no reason or justification to prevent the Bank from recruiting directly employees pursuant to the
advertisements, which was challenged in the main Writ Petition W.P. No. 14251 of 1996. In W.P. No. 14251/1996, the All India Bharat
Overseas Bank Employees'' Union (hereinafter referred to as ''the employees Union'') have sought for the issue of a Writ of Mandamus, directing
the respondents-Bharat Overseas Bank represented by the Chairman and Chief Executive (hereinafter referred to as ''the Bank Management'') not
to fill up vacancies of clerical cadre by direct recruitment pursuant to the advertisement dated March 30, 19% till one third of the post in clerical
cadre is filled up by promotion in accordance with the service conditions or till such time the service conditions are duly altered in accordance with
Sections 9-A and 33 of the Industrial Disputes Act, 1947.
3. The Writ Appeal No. 584/1997 has been filed by the Employees Union against the order of a learned single Judge of this Court dated April 12,
1997 in W.P.No. 5184/1997, dismissing in limine the Writ Petition filed seeking for the issue of a Writ of Mandamus, restraining the respondent-
Bank Management from filling up the vacancies of Computer Service Officers/Trainee Officers or any category Grade-I Officers by direct
recruitment without first identifying and filling up the 75% of the vacancies from the clerical cadre pursuant to the advertisement in ""The Hindu
dated January 11, 1997, till such time service conditions are duly altered in accordance with Sections 9-A and 33 of the Industrial Disputes Act,
1947.
4. The claim of the Employees'' Union in this case is based upon the settlement entered into earlier u/s 18(1) of the Act on January 7, 1987, which
admittedly came to an end by January 7, 1990. The claim projected by the Employees'' Union was based on Section 19 of the Act to contend that
the terms of the settlement will continue to be in force and operation till such time it is replaced by new settlement or by an award and the terms are
binding on the parties even after the settlement came to an end. It was also contended for the Employees'' Union that without complying with the
provisions of Section 9-A of the Act, the service conditions relating the promotional avenues or prospects of the members of the Union cannot be
altered or varied.
5. The learned single Judge has chosen to reject the Writ Petition on the ground that the Bank in question is owned by seven Banks and
professionally managed in its private sector and a Writ Petition against such an institution except in extraordinary circumstances will not lie and on
the facts and circumstances of the case, the learned single Judge could not see any extraordinary circumstances to warrant the entertaining of the
Writ Petition. In other respects the learned single Judge also was of the view that no writ can lie for enforcing the terms of the settlement entered
into between parties u/s 19 of the Industrial Disputes Act and, any grievance in this regard may have to be projected by initiating proceedings
under the Industrial Disputes Act itself. It is against the said order of the learned single Judge, the Writ Appeal came to be filed.
6. W.P.No. 8193/1995 has been filed by the same Employees'' Union, seeking for the issue of a writ of Certiorarified Mandamus to call for and
quash the circular of the Bank dated November 8, 1994, wherein the Personnel Department''s circular No. 37/1994 has issued guidelines and
norms for promotion of clerical staff to officers'' cadre and as a consequence thereof to issue a direction in the nature of a Writ of Mandamus to
direct the Bank to fill up posts in the Clerical to Officers'' categories by promotion and direct recruitment in conformity with the promotion policy
dated January 7, 1987 after identifying the vacancies in each category until a new promotion policy is evolved by a settlement or an award under
the Industrial Disputes Act, 1947. The case of the writ petitioners is that from the clerical staff, an internal promotion is permissible to the lowest
post in the Officers'' category as also by direct recruitment to the said officers'' category and the subject matter of such promotions is covered by a
settlement dated January 7, 1987 entered into between parties under the Industrial Disputes Act, as per which, 25% of the vacancies are to be
filled up by direct recruitment and the balance of 75% of internal promotion and out of the 75% of the vacancies ear-marked for internal
promotions, 25% are to be filled up by process ''A'' by applying the principle of seniority- cum-interview and the balance of 50% out of the 75 %,
of the vacancies are to be filled up by process ''B'' by means of a written test followed by an interview. In respect of the process ''B'', the selection
for appointment could be de hors the principle of seniority. It appears on July 13, 1994 the Bank Management gave an advertisement, calling for
applications for direct recruitment in the Officers'' category without identifying the vacancies and the Employees'' Union claims to have by their
letter dated February 23, 1994, called upon the Bank to identify the vacancies and adhere to the promotion policy in terms of the earlier settlement
dated January 7, 1987 and that on September 21, 1994 the Bank by a reply to the demands appears to have stated that the process of man
power planning was under way and after the scale promotion, the vacancies will be identified. According to the writ petitioner Union, contrary to
the assurance the circular No. 37/94 dated November 8, 1994 proposing to fill up vacancies on the basis of new promotion policy brought into
effect unilaterally came to be issued and as per which for promotion under process ''A'' category, no weightage would be given to seniority and the
minimum qualification was to be a graduate, for a person to claim appointment. So far as the process ''B'' is concerned, the grievance of the
petitioner Union is that the minimum qualifying marks for written test was not mentioned and the vacancies were not identified. It appears on
November 8, 1994, the Union gave a strike notice u/s 22 of the Industrial Disputes Act, claiming among other things to continue the existing
promotion as was in force in terms of the settlement dated January 1, 1987 till it is replaced by a negotiated new settlement or an award.
Apprehending the enforcement of the new circular orders dated November 8, 1994 in the matter of further promotions and appointment, the
above Writ petition came to be filed.
7. W.P. No. 8261/1996 has been filed by the Employees Union seeking for the issue of a Writ of Mandamus, restraining the Bank Management
from filling up the vacancies of Officer Grade-I/ Probationary Officers/ Officers by direct recruitment pursuant to the advertisement published in
''""The Hindu"" dated February 10, 1996 till 75% of the post in Officers'' Grade Scale-I/Officers is filled up by promotion in accordance with the
service conditions or till such time the service conditions are duly altered in accordance with Sections 9-A and 33 of the Industrial Disputes Act,
1947.
8 (a). W.P.No. 14251/l996:-Writ Appeal No. 108/1998, as noticed earlier, came to be filed against an interlocutory order in a petition filed in
W.P. No. 14251/1996. The purpose for which the main Writ Petition as such came to be filed, has already been noticed, while setting out the
factual details leading up to the filing of the writ Appeal No. 108/1998. So tar as the Writ Petition is concerned, the claim of the Employees'' Union
is based on a settlement entered into between parties on June 17, 1998 under which 25 % of the vacancies in the clerical cadre has got to be filled
up by internal promotion from subordinate staff cadre and the rest by direct recruitment. It is also claimed that out of 25 % in the vacancies one
third which is rounded to the nearest whole number proposed to be filled up in any particular calender year by promotion to clerical cadre shall be
filled up on the basis of seniority and interview as per process ''A'' and the remaining two thirds of the vacancies is to be filled up by process ''B''
by written test and interview. According to the Employees'' Union, the period of the settlement though expired, in terms of Section 19 of the Act, it
is continued to be in operation and the terms of the same are binding on the parties till such time as it is replaced by a new settlement or by any
award. But according to the Employees'' Union the Bank Management has chosen to publish an advertisement dated March 30, 1996 inviting
applications for direct recruitment from outsiders without even identifying the vacancies and since the representation of the Employees'' Union to
the Bank to desist from doing so was not heeded to and the Bank pursued its proposals, the filing of the above Writ Petition No. 14251/1996 was
necessitated.
(b). The Bank Management has filed a counter affidavit in this Writ Petition contending that the Bank in question being a mere company registered
under the Companies Act, 1956 and not a Government company and 70% of the shares being held also by private sector banks and the 30% of
the shares being held by Indian Overseas Bank, no writ can lie against the bank. In support of such claim, the earlier decision of a learned single
Judge of this Court and that of the Gujarat High Court relating to the very Bank have been relied upon. So far as the claim on merits is concerned,
the Bank Management apart from asserting that it is open to them to recruit the best of the candidates in order to maintain effective and standard
quality of service also contended that the alleged violation of Section 9-A of the Act has no basis and that even if any such grievance could be
urged, it has got to be projected in appropriate proceedings under the Act itself and that there are no merits whatsoever in the claim of the Union,
before this Court.
9. Mr. N.G.R. Prasad, learned counsel appearing for the Employees'' Union strenuously contended that as long as the earlier settlements dated
June 17, 1988 in one group of cases and January 7, 1987 in the other group of cases are replaced by any mutually negotiated and agreed
settlement or by any award as such, the promotion policy in vogue all along pursuant to the settlements arrived at between parties could not be
unilaterally either given a go bye or altered or changed to the detriment of the workers and that any such change would be in this case in violation
of Section 9-A of the Act for non-compliance with the said provision and also the provisions contained in Section 33 of the Act. So far as the
maintainability of the writ petition as such is concerned, the learned counsel contended by placing reliance upon some of the decided cases to
which a reference will be made hereinafter that even though a person or an institution is not an authority falling within the definition of State within
the meaning of Article 12 of the Constitution of India, for flouting or disobeying any statutory provisions of the Act or when the monstrosity of the
situation so warrants, there is no impediment for an aggrieved person to approach this Court invoking its extraordinary jurisdiction under Article
226 of the Constitution of India or disabling this Court to accord relief also in such cases.
10. On the above view, the learned counsel contended that the proposed filling up of vacancies could be either in accordance with the settlements
already entered into or to be in accordance with any mutually agreed fresh settlement and by no means it could be by the newly and unilaterally
proposed promotion policy.
11. Per contra, Mr. G. Subramanian, learned senior counsel appearing for the Bank Management with vehemence contended, placing reliance
upon some of the decided cases that the Bank in question is a private body and no writ would lie against the same and as held by the learned single
Judge, there are no extraordinary circumstances to warrant the entertaining of such a writ petition in the cases before us, and consequently, the
Writ Petitions are liable to be dismissed as not maintainable. Argued the learned senior counsel further that the alleged violation of Section 9-A or
Section 33 of the Industrial Disputes Act has no basis on the facts and circumstances of the case and that the provision of Section 9-A is not at all
attracted to the cases on hand.
12. While elaborating the submission relating to the applicability of Section 9-A of the Act, learned senior counsel submitted that Section 9-A
inhibits an employer from proposing to effect any change in the conditions of service applicable to any workman in respect of any matter specified
in the fourth schedule without complying with the stipulation contained in Section and that the grievances now sought to be projected by the
Employees'' Union do not fall within any of the enumerated clauses or entries in the fourth schedule to the Act, though the learned counsel for the
Employees'' Union Mr. N.G.R. Prasad would, contend that entry 8 is wide enough to cover such cases also.
13. It was also contended for the Bank Management that the demand raised by the Employees'' Union in this regard came to be rejected by the
Government and a reference sought for was declined and therefore, in the absence of any challenge to the same or any pending proceedings in this
regard, there is no scope for making any grievance of violation of Section 33 of the Act also.
14. Before undertaking a consideration of the merits of the contentions of the learned counsel on either side, it would be useful to refer to some of
the decisions strongly relied upon by the learned counsel appearing on either side. So far as the maintainability of the Writ Petitions is concerned,
the learned counsel for the Employees* Union Mr. N.G.R. Prasad placed strong reliance upon a Division Bench judgment of this Court, to which
one of us (RAJU, J.) was a party reported in ""Sadasivan V. and Ors. v. Binny Ltd., and Anr."" 1998 I LLJ 349 and some of the earlier decisions
noticed in the said Division Bench Judgment. That was a case wherein the workers of a Public Limited Company, which is not an authority or State
within the meaning of Article 12 sought for the issue of a Writ before this Court, complaining about the unconstitutionally as also grave illegality of a
clause in the contract of service, which provided for discharging simpliciter any staff without reason or prior opportunities as being void and
unenforceable. In dealing with a similar objection about the maintainability of the Writ Petition, the Division Bench has noticed all the earlier and
relevant decisions rendered in this connection by the Apex Court as also by this Court and held as follows:
9. We have carefully considered the submission of the learned counsel appearing on either side. In our view, the expansive use and exercise of
powers under Article 226 of the Constitution of India cannot be made as a matter of course, merely because some grievance of a wrongful
dismissal is made, despite the fact that such grievance is against a private party and not even any ''other authority'' and notwithstanding the position
that an adjudication of the issues raised involve determination of question of fact which could be properly and effectively determined only on
appreciation of materials placed on record documentary or oral, or gathered in the manner known to and in accordance with law. Even the
Division Bench decision reported in Madras Labour Union Vs. Binny Ltd. (Buckingham and Carnatic Mills) and others, though professes to cull
out certain principles as flowing from out of the various decisions considered therein and stated such principles in a little too general and wide
terms, the fact that ultimately the very Bench in applying those principles only took the view that the earlier decision of the Division Bench of this
Court reported in 1982 II LLJ-90 (supra) (Buckingham Car-natic Mills v. The State of Tamil Nadu) taking the view that the implementation of a
Settlement entered into u/s 12(3) of the Industrial Disputes Act cannot be had in exercise of the writ jurisdiction will govern the case before them.
The plea of alleged violation of Sections 25-N and 25-O was refused to be gone into as involving consideration of disputed questions of facts.
Therefore, the exercise of powers would always depend upon the peculiar facts and circumstances of the case and there cannot be any hard and
fast rule of universal application. If any violation of Fundamental Right is directly involved for consideration, it matters very little as to the character
or the status of the violator, be it or be not answering the description of ''State'' within the meaning of Article 12 and the Court exercising
jurisdiction under Article 226 would intervene. At the same time, even if he/it be a person or authority against whom ordinarily a writ would lie, if
the subject matter of the writ or the grievance sought to be vindicated is such which the Courts exercising jurisdiction would hesitate to undertake
to adjudicate on account of their being an effective statutory machinery to have such issues or on account of the need to take or record evidence
oral or mark documentary evidence with liberties to do so for either side, the writ Court would always considerit to be inappropriate to embark
upon or entertain such issues for adjudication under Article 226 of the Constitution of India, though there are no statutory or constitutional limits
stipulated on the exercise of power itself and the limitations imposed are self imposed or imposed by any declaration of law made by the Apex
Court. The decision Integrated Rural Development Agency Vs. Ram Pyare Pandey, and 1996(2) LLN 965 (supra) will also go to show that the
claim of the petitioners cannot be countenanced, as projected.
15. The learned counsel for the Bank Management has chosen to place reliance upon the judgment of a learned single Judge of this Court in W.P.
No. 3005/1995 (R. Thamarai Selvan v. The Reserve Bank of India, rep. by its Governor, Bombay and two others), concerning the very bank and
that of a learned single Judge of the Gujarat High Court in Special Civil Application No.7220/1996 dated January 30, 1997 (Ushaben K. Shah v.
Bharat Overseas Bank Ltd.. through Chairman, Habeeb Tower, 756, Anna Salai, Madras-600 002 and two others) taking the view that the
respondent-Bank Management is not an authority amenable to the writ jurisdiction of the High Court. Same view appears to have been taken by
another learned single Judge of this Court in W.P.No. 14176/1996 dated April 12, 1997 (S. Vijayalakshmi v. Bharat Overseas Bank, rep. by
Chief Manager (Personnel), 756, Anna Salai, Chennai-2). In the light of the Division Bench Judgment in Sadasivan, V. ''s case (supra) rendered
after considering alt relevant decisions, we consider it not only inappropriate but inadvisable to refer to or rely upon the decisions of the various
learned single Judges despite the fact that it may relate to the very institution in question, or the same principle involved for our consideration, for
the reason that we should not be mistaken according our approval to the judgments rendered by the learned single Judges to the detriment of the
other parties to those proceedings, who are not before us. Consequently, we propose to deal with the case before us even on the submissions
made in the light of the Division Bench Judgment and the other decisions noticed by the very Division Bench.
16. As far as the other issue relating to the consequences following the expiry of a bilateral settlement entered into between the parties with
reference to the subsequent period till another bilateral settlement replaces the original settlement or the same is replaced by any award, the learned
counsel relies upon the decision re ported in ""L.I.C. of India v. D.J. Bahadur"" 198 M LLJ 1, particularly paragraphs 32 and 45. Paragraph 33
reads as follows:
The core question that first falls for consideration is as to whether the Settlements of 1974 are still in force. There are three stages or phases with
different legal effects in the life of an award or settlement. There is a specific period contractually or statutorily fixed as the period of operation.
Thereafter, the award or settlement does not become non est but continues to be binding. This is the second chapter of legal efficacy but
qualitatively different as we will presently show. Then comes the last phase. If notice of intention to terminate is given u/s 19(2) or 19(6) then the
third stage opens where the award or the settlement does survive and is in force between the parties as a contract which has superseded the earlier
contract and subsists until a new award or negotiated settlement takes -its place. Like Nature, Law abhors a vacuum and even on the notice of
termination u/s 19(2) or (6) the sequence and consequence cannot be just void but a continuance of the earlier terms, but with liberty to both sides
to raise disputes, negotiate settlements or seek a reference and award. Until such a new contract or award replaces the previous one, the, former
settlement or award will regulate the relations between the parties. Such is the understanding of industrial law at least for 30 years as precedents of
the High Courts and of this Court bear testimony. To hold to the contrary is to invite industrial chaos by an interpretation of the I.D. Act whose
primary purpose is to obviate such a situation and to provide for industrial peace. To distil from the provisions of Section 19 a conclusion
diametrically opposite of the objective, intendment and effect of the Section is an interpretative stultification of the statutory ethos and purpose.
Industrial Law frowns upon a lawless void and under general law the contract of service created by an award or settlement lives so long as a new
lawful contract is brought into being. To argue otherwise is to frustrate the rule of law. If law is a means to an end - order in society - can it commit
functional harakiri by leaving a conflict situation to lawless void?"".
17. Paragraph 43 reads as follows:
It is inconceivable that any other alternative subsists. For instance, imagine a case where for 30 years an award or settlement might have given
various benefits to employees and at the end of 30 years a notice terminating the settlement was given by the employer. Does industrial law
absurdly condemn the parties to a revision to what pre-vaild between them 30 years ago? If the employees were given Rs. 100/- as salary in 1947
and, thereafter, by awards and settlements the salary scale was raised to Rs.1,000/- could it be the Management might, by unilateral yet disastrous
action give notice u/s 19(2) or (6) terminating the settlement or award, tell the workers that they would be paid Rs. 100/- which was the original
contract although in law that contract had been extinguished totally by a later contract of settlement or by force of an award? The horrendous
consequences of such an interpretation may best be left to imagination. Moreover, if industrial peace is the signature tune of industrial law, industrial
violence would be the vicious shower of consequences if parties were relegated either to an ancient and obsolete contract or to a state of lawless
hiatus. No canon of interpretation of statutes can compel the Court to construe a statutory provision in this manner. We have, no doubt that the
precedents on the point, the principles of industrial law, the constitutional sympathy of Part IV and the sound rules of statutory construction
converge to the same point that when a notice intimating termination of an award or settlement is issued the legal import is merely that the stage is
set for fresh negotiations or industrial adjudication and until either effort ripens into a fresh set of conditions of service the previous award or
settlement does regulate the relations between the employer and the employees. The Court never holds justice as hostage with law as janitor: Law,
if at all, liberates justice through the judicial process. Fundamental error can be avoided only by remembering fundamental values.
18. The learned counsel for the Employees'' Union also placed strong reliance upon paragraph 61 of the decision reported in Air India Statutory
Corporation, etc. Vs. United Labour Union and others [overruled], . As noticed earlier, though the learned counsel on either side has chosen to
refer to us some of the judgments rendered by learned single Judges and some other decisions, which are not relevant for the nature. of case
considered by us, we are desisting from multiplying the same by reference to all such authorities in this judgment.
19. In L. Robert D''souza Vs. Executive Engineer, Southern Railway and Another, , the Apex Court held that in order to attract Section 9-A, the
employer must be desirous of effecting a change in the condition of service in respect of any matter specified in the Fourth Schedule and if the
change proposed does not cover any matter in the Fourth Schedule, Section 9-A is not attracted and no notice is necessary.
20. In ""Workmen in Canteen in S.R.F. Limited v. Government of Tamil Nadu 1996 (2) LLN 965, the Apex Court expressed the view that a relief
of Writ of Mandamus could not be sought for or granted against the private company, except where extraordinary circumstances have been shown
and not as a matter of course.
21. We have carefully considered the submissions of the learned counsel appearing on either side. It is by now well settled in a series of decisions
of this Court as also the Apex Court, that there is no universal or general rule that no writ petition could lie against a private person or a private
institution and that in certain given circumstances or when the monstrosities of the situation or exceptional circumstances cry for timely judicial
intervention or mandate, nothing precludes this Court in exercise of its writ jurisdiction, to grant relief against such persons also. The question for
consideration therefore, in this case before-ever going into the question of the respective claims of the petitioners as such is as to whether the
principles laid down and the criteria indicated in the decision reported in Madras Labour Union Vs. Binny Ltd. (Buckingham and Carnatic Mills)
and others, and Sadasivan V. and Ors. v. Binny Limited and Anr."" (supra) can be said to have been satisfied in this case for this Court to entertain
a writ petition and adjudicate all the issues raised on merits. The fact that the Bank Management in question is a private institution not answering the
description of the ""State"" within the meaning of Article 12 of the Constitution of India is not in serious controversy, since no such exercise has been
undertaken before us to substantiate with reference to the constitution of the bank as such and any principles of law that it so answers the
description of the ""State"" within the meaning of Article 12 of the Constitution of India. In such circumstances, the exercise of powers under Article
226 of the Constitution of India could be made only if the subject matter of the claim or the grievance sought to be vindicated as such could not
otherwise be effectively undertaken for pursuit of remedies before any other forum or under any other law. The violation alleged, in our view, in this
case cannot be said to be prima facie made out without any further enquiry into the details of the merits of the claims. An adjudication of such
issues as have been raised on merits for the claims in these proceedings would involve further collection of material and detailed enquiry and the
existing situation as also the respective rights of parties. All such exercises in our view, have to be undertaken in every case of any alleged violation
of statutory provision de hors the disputed basis of facts of such alleged violation also. Otherwise this Court would be only substituting itself in the
place of the regular machinery created for adjudication under the respective industrial law governing a situation. So far as the cases on hand are
concerned, or any alleged violation of Section 9-A as also Section 33 of the Act, there tion 33 of the Act, there are ample remedies available
under the Act itself to vindicate their rights. The decision in ""L.I. C. of India v. D.J. Bahadur (supra) is one pertaining to an institution which
answered the description of ''State'' within the meaning of Article 12 of the Constitution of India and the fact that a Writ Petition was entertained in
such a case by itself, is no justification to entertain likewise a Writ Petition in this case also.
22. We desist from undertaking an adjudication on the issues about the alleged violation of Sections 9-A and 33 of the Act in this case for the
reason that it calls for detailed enquiry and consideration of the materials gathered and any decision rendered by us is likely to forestall the effective
consideration or independent adjudication of issues raised before the appropriate adjudicatory authorites under the Act. In view of our conclusion
that we do not consider in this case existence of any extraordinary or monstrous situation as envisaged in the binding authorities of this Court to
justify our granting any relief in these Writ Petitions, there is no justification for us to interfere with the discretion exercised by the learned single
Judge. Consequently, we are of the view that the petitioners have not made out a case to entertain these Writ Petitions on account of any
monstrous or extraordinary situation, which has to be dealt with or decided by this Court only in exercising its extraordinary writ jurisdiction. We
are in entire agreement with the view taken by the learned single Judge declining to entertain the Writ Petition on the ground that no such
extraordinary situation has been shown to exist for such intervention.
23. These Writ Petitions as also the Writ Appeals fail and shall stand dismissed only on the ground that the Writ Petitions are not maintainable and
that the Employees'' Union are left with liberty to agitate and vindicate their rights before the appropriate forum under the Industrial Law by
invoking the appropriate procedure and remedies. As and when the petitioners/appellants move such forums, invoking such remedies, such forum
or authorities shall consider the claims of the Employees'' Union objectively and on merits uninfluenced by any of the observations made by the
learned single Judge in any of the orders, which are challenged in the Writ Appeals before us. Consequently, all the W. M. Ps. are also dismissed.
No costs.
