H.K. Rathod, J.@mdashHeard learned Advocate Mr. K. D. Gandhi for M/s. Nanavati Associates for petitioner-Bombay Mercantile Co-operative Bank Limited.
2. By filing this petition under Article 227 of Constitution of India, petitioner has challenged order passed by Industrial Tribunal, Ahmedabad in Reference (I.T.C.) No. 18 of 1995 (Old Number) and 1618 of 2008 (New Number) Exh. 48 dated 16th January, 2010. Industrial Tribunal (Central) has dismissed application Exh. 48 submitted by petitioner-Bank and has fixed further heading of said Reference on 1st February, 2010. During the course of hearing, prayer was made by learned Advocate for petitioner to amend prayer and has prayed for permitting petitioner for praying to stay proceedings of said Reference and order Exh. 48 both. Such prayer is granted. Petitioner is directed to amend accordingly.
3. Learned Advocate Mr. Gandhi for petitioner raised contention before this Court that before Industrial Tribunal (Central), application was made by petitioner-Bank on 19-9-2008 raising preliminary contention vide Exh. 48 that in view of the recent decision of Apex Court in the matter of
4. I have considered submissions made by learned Advocate Mr. Gandhi. I have also perused impugned order passed by Industrial Tribunal (Central) below Exh. 48. I have also perused decision of Apex Court in case of Bharat Co-op. Bank and also decisions which have been referred to and relied upon by learned Advocate Mr. Gandhi before this Court as referred to above.
5. This case is having little a bitter history and legal fight between two unequals, one is poor employee who is out of job since 12th November, 1991, meaning thereby, it is like Nirbalki ladai balwan se, ye kahani hai diye ki aur toofan ki.
6. Looking to the facts as they are appearing from record, respondent was an employee of the petitioner-Bank, working as a peon. One incident occurred on 30th July, 1990 while balancing cash at 5-00 p.m., Head Cashier had noticed about shortage of cash of Rs. 5000-00 and it was informed to Branch Manager about shortage of cash, therefore, search was carried out but without any success and on next date, 31st July, 1990, it was further inquired and suspicion was raised against present petitioner with close interrogation by Head Cashier and according to Bank, respondent admitted to have taken bundle of Rs. 5000-00 and agreed to return it to the Bank. On the basis of aforesaid incident, show-cause notice was served to respondent on 4th August, 1990 which was replied by respondent on 10th August, 1990, and thereafter, departmental inquiry was completed and ultimately, he was dismissed from service on 12th November, 1991, and thereafter, after a period of four years, industrial dispute was raised by respondent which came to be referred to by appropriate Government means Central Government to Central Industrial Tribunal being Reference (I.T.C.) No. 18 of 1995. Here, it is necessary to note that one important fact is required to be noted which is relevant that initially, respondent-workman had raised industrial dispute before appropriate Government being State Government, as per reply submitted by present respondent against application Exh. 48 before Industrial Tribunal (Central), page 49, specific averment was made that initially complaint u/s 2(a) of the I.D. Act, 1947 was filed before Assistant Commissioner of Labour, State Government wherein petitioner-Bank had remained present in response to notice and raised contention before said authority that the petitioner-Bank is having branches out side State of Gujarat, and therefore, Central Government is the appropriate Government and not the State Government. In response to aforesaid contention raised by petitioner-Bank before Assistant Commissioner of Labour, respondent-workman had withdrawn complaint u/s 2(a) from the Assistant Commissioner of Labour State Government and had approached the Assistant Commissioner of Labour, Central Government where also, petitioner-Bank had appeared and made its written submissions but before said authority of Central Government, petitioner-Bank had not raised contention about jurisdiction of said authority of Central Government and it was also not contended by petitioner that the Central Government is not appropriate Government. Meaning thereby, that when the complaint was filed by respondent before Assistant Commissioner of Labour, Central Government, his jurisdiction was not challenged and petitioner-Bank had surrendered to the jurisdiction of the Assistant Commissioner of Labour, Central Government, and accordingly, industrial dispute has been referred to for adjudication to the Industrial Tribunal (Central) for adjudication by order dated 19th July, 1995, and accordingly, it was numbered as Reference (I.T.C.) No. 18 of 1995. Before Industrial Tribunal (Central) also, written statement was filed by petitioner-Bank, but this contention was not raised by petitioner that the dispute which has been referred to for adjudication by Central Government is without jurisdiction, and therefore, order of Reference is bad because it is referred to by Central Government and not by the State Government, but jurisdiction of Industrial Tribunal (Central) has been accepted by petitioner and order of Reference has also not been challenged at the relevant time by petitioner before higher forum and no such contention has been raised in written statement by petitioner-Bank. Therefore, matter has been examined by Industrial Tribunal (Central) on merits and before Industrial Tribunal (Central), as referred to in Para 6 of award, legality and validity of departmental inquiry was not challenged by workman by filing purshis at Exh. 34 but challenged only legality and validity of finding and also challenging that findings are baseless and perverse and charges are not proved in departmental inquiry, and therefore, Industrial Tribunal (Central) has examined matter and in Paragraph 20, after re-appreciating evidence led in departmental inquiry, legality and validity of finding has been, in detail, examined by Industrial Tribunal and has come to the conclusion that such finding is baseless and perverse and on the basis of evidence led in departmental inquiry by petitioner-Bank, charges levelled against workman are not proved, and therefore, Labour Court has set aside order of dismissal and granted relief of reinstatement with continuity of service with 60 percent back wages for interim period and awarded Rs. 500-00 towards costs vide award dated 5th September, 2001.
7. Aforesaid award was challenged by petitioner before this Court by filing petition being Special Civil Application No. 3628 of 2002, raising contentions in Ground No. B, C and G which are quoted as under:
(B) The Tribunal has failed to construe and interpret the provisions of Section 2(k) of the I.D. Act under which the dispute was referred to it. Section 2(k) reads as under:
2(k) ''industrial dispute'' means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any persons.
The petitioner submits that the dispute referred to in the present case is not the workman as a class, but was raised for the individual workman and is not supported by the Union or for that matter any of the workmen of the Bank. In the respectful submission of the petitioner, the Reference was therefore not maintainable and the consequential order passed therein by the Tribunal is liable to be quashed and set aside.
(B) The petitioner submits that the dispute was referred to in 1995 after a period of almost five years after the order of dismissal was passed against the respondent. In the submission of the petitioner, therefore, when the respondent has acquiesced to the order of dismissal, there was no necessity for referring the dispute after a period of five years. The petitioner submits that dispute must be referred within reasonable time and not at any time when the party aggrieved by it -either workman or employer - desires to refer the same. In the present case, there is not only delay in referring the dispute but there is gross delay in referring the dispute. In the submission of the petitioner, on this ground too, the order deserves to be quashed and set aside.
(G) The petitioner submits that the inquiry against the respondent was held in consonance with the principles of natural justice and fair-play. No grievance was made by the respondent during the course of inquiry about the validity and legality of the inquiry being conducted. The validity and legality of the inquiry was not challenged by the respondent. Therefore, the findings of fact arrived at by the Inquiry Officer ought not to have been disturbed by the Tribunal, especially when no allegation of victimization or mala fide has been alleged against the officers of the Bank who have no Axe to grind against the respondent. The order of the Tribunal, is therefore, liable to be quashed and set aside.
8. Before this Court, in Special Civil Application No. 13628 of 2002, one affidavit was filed by petitioner-Bank where copy of written statement placed before Industrial Tribunal (Central) has also been attached with affidavit. Relevant Paragraph Nos. 3 and 4 of said affidavit are quoted as under:
3. It is submitted that though the petitioner-Bank, had in Paragraphs 20 and 21 of its written statement clearly stated that if for any reason the Hon''ble Presiding Officer found the inquiry conducted against the respondent-workman vitiated and/or illegal or improper, the petitioner-Bank be given the opportunity to lead additional evidence, the Presiding Officer did not allow the present petitioner to lead additional evidence. We rely upon the judgment of the Hon''ble Supreme Court reported in
4. In view of the aforesaid facts and circumstances and judgment, it is amply clear that the Tribunal has erred in not allowing the petitioner-Bank to lead additional evidence, hence the order dated 5-9-2001 of the Tribunal is required to be quashed and set aside.
9. It is necessary to note that aforesaid affidavit was filed by petitioner before this Court with a prayer that no such opportunity was given by Industrial Tribunal (Central) before setting aside finding given by inquiry officer. For that, according to petitioner-Bank, they are entitled to lead additional evidence before Industrial Tribunal (Central). In support of that, copy of written statement Exh. 7 has been attached to affidavit as Annexure-A relying upon Paragraphs 20 and 21 which is quoted as under:
20. Without prejudice to the aforesaid contentions, the Bank submits that if for any reason the Hon''ble Presiding Officer is pleased to take a view that the inquiry conducted against the workman was vitiated and/or illegal or improper, then in that event, the Bank is desirous of leading evidence before the Hon''ble Presiding Officer with a view to prove the misconduct alleged against the workman by charge-sheet dated 10-9-90 and the Hon''ble Presiding Officer may be pleased to grant necessary permission for the same.
21. The Bank submits that the workman was supplied with a copy of the findings of the Inquiry Officer and was given the opportunity to make submissions in respect of the proposed punishment of dismissal. However, for any reason, the Hon''ble Presiding Officer is pleased to take contrary view in the matter, then, in that case also necessary opportunity in respect thereof may be given as per law laid down by the Hon''ble Court.
10. In light of this factual aspect where challenge was made by petitioner-Bank before this Court in earlier petition where award of reinstatement with 60 percent back wages was challenged by petitioner before this Court. Therefore, this was limited challenge made by petitioner-Bank in its earlier petition filed before this Court. In light of this challenge, it is necessary and relevant to consider order of this Court dated 22-2-2006 passed in aforesaid petition. Same is, therefore, quoted as under:
1. This petition under Article 227 of the Constitution of India is directed against the award dated 5-9-2001 passed by the Central Industrial Tribunal, Ahmedabad in Reference (I.T.C.) No. 18 of 1995 whereby the Industrial Tribunal has directed the petitioner to reinstate the respondent on his original post with 60% back wages and cost of Rs. 500/-.
2. The brief facts of the case are that the respondent was working as a peon with the petitioner-Bank. On 30-7-1990, while balancing the cash at 17-00 hrs, the Head Cashier informed the Branch Manager about the shortage of cash. Thereafter, a check was carried out within the Bank but to no success. The next day, when the respondent was examined he admitted to have taken the amount. The respondent agreed to return the amount and he duly returned the same in the presence of the Head Cashier, Receiving Cashier and the younger brother of the respondent.
2.1. Thereafter, the petitioner-Bank served a charge-sheet and a departmental inquiry was initiated against him. At the conclusion of the inquiry, on charges being proved against him, the respondent was dismissed from the services of the petitioner-Bank. After a period of four years, the respondent raised an industrial dispute which was referred to the Labour Court for adjudication. The Labour Court after hearing the parties passed the aforesaid award.
3. Learned Counsel for the petitioner has contended that the inquiry against the respondent was held in consonance with the principles of natural justice and that the respondent has not alleged anything against the officers of the petitioner-Bank who have given evidence. He has further contended that the Tribunal erred in granting 60% back wages to the respondent inasmuch as the Reference was made after a delay of almost four years after the order of dismissal.
4. Heard learned Counsel for the parties. I have gone through the award of the Industrial Tribunal and the evidence on record. The Apex Court in the case of Karnataka State Road Transport Corporation v. Lakshmideviamma reported in 2001 (5) SCC 436 has held that the employer''s request when made before close of proceedings deserves to be examined by the Labour Court/Tribunal on its own merits and the Labour Court/Tribunal should exercise discretion on well settled judicial principles and should examine the bona fides of the employer in making such an application. In that view of the matter, I am of the opinion that the matter is required to be remanded to the Industrial Tribunal for reconsideration of the matter.
5. In the premises aforesaid, the petition is allowed. The award of the Industrial Tribunal is quashed and set aside. The Tribunal is directed to hear and dispose of the Reference after allowing the parties to adduce evidence. Rule is made absolute accordingly with no order as to costs.
11. In view of the aforesaid order passed by this Court, it is clear that in petition filed by petitioner-Bank and in affidavit as referred to above and also in written statement Exh. 7 as referred to above, petitioner-Bank has not raised any contention about jurisdiction of Industrial Tribunal (Central) and also not challenged legality and validity of order of Reference referred to for adjudication to Industrial Tribunal (Central) by appropriate Government-Central Government. Not only that but this point was also not raised before this Court in earlier petition by petitioner-Bank looking to observations made by this Court as referred to above. In light of this background, petition was allowed by this Court with a direction to Industrial Tribunal (Central) to hear and dispose of Reference after allowing parties to adduce evidence. Therefore, mater was remanded for limited purpose where parties are permitted to adduce evidence in respect to the contention raised in written statement Paragraphs 20 and 21 as referred to above. In short, petitioner-Bank wants to lead evidence to justify order of dismissal and also to justify finding given by Inquiry Officer. In light of this background, just to see the conduct of petitioner-Bank having taking advantage of recent judgment of Apex Court in case of
12. Industrial Tribunal (Central) has considered application Exh. 48 submitted by petitioner-Bank and has also considered reply Exh. 51 filed by respondent-workman. In light of this legal aspect, whether the decision of Apex Court in case of Bharat Co-op. Bank Ltd. (supra) is having retrospective effect or not and whether such decision is applicable to pending cases or not, for that, certain decisions are necessary to be considered by this Court, over and above decisions referred to and relied upon by learned Advocate Mr. Gandhi.
13. Division Bench of this Court in case of Indian Oil Corporation Ltd. v. Mahendrabhai R. Patel reported in 1987 (54) FLR 490, has examined question in Special Civil Application filed by I.O.C. challenging order of Labour Court Baroda where subsequent notification changing appropriate Government. It has been held that the Reference has not been invalidated by subsequent notification changing appropriate Government. Relevant discussion made by Division Bench of this Court in said decision is quoted as under:
This Special Civil Application is to quash, the order of the Labour Court, Baroda, wherein the Labour Court has held that the subsequent notification changing the ''appropriate Government in relation to certain industry will not invalidate the Reference made by the appropriate Government at the time the dispute was referred. Mr. Bhatt, the learned Counsel appearing for the petitioner submitted that by virtue of the notification dated 21-6-1985, the Central Government was specified as appropriate Government for oil industry. At the time of the Reference u/s 10 of the Industrial Disputes Act, 1947, the appropriate Government was the State Government in respect of this particular industry. Inasmuch as there is a change in the appropriate Government subsequent to the matter having been referred to the Labour Court under the powers conferred u/s 10 of the Industrial Disputes Act, Mr. Bhatt the learned Counsel for the petitioner, submitted that Labour Court ceased to have jurisdiction. This he wanted to fortify by submitting that as per Section 17 of the Industrial Disputes Act, 1947, the appropriate Government to publish the award that will be passed by the Labour Court. Since, at the time of passing the award, the appropriate Government will not be the State Government, the difficulty will arise for publication of the award concerned.
We have issued notice on this petition and Mr. N. J. Mehta entered appearance on behalf of the respondent and Mr. S. D. Shah entered appearance on behalf of the second respondent. Both of them contended that the appropriate Government is that Government which has referred the dispute to the Labour Court u/s 10, that it continues to be the appropriate Government and that when any award is passed by the Labour Court, the said appropriate Government ''which referred the matter will publish it u/s 17 of the Industrial Disputes Act. It is unnecessary for us to site any decision for the clear proposition that it is only that appropriate Government which referred the matter will be the appropriate Government for publishing the report or award u/s 17 even though the ''appropriate Government'' is changed during the pendency of the award proceedings by virtue of any notification by the Government on the strength of Section 2 of the Industrial Disputes Act, 1947.
In any way, we make Reference to one decision cited by Mr. N.J. Mehta, the learned Counsel appearing for the first respondent, in the case of
53. The words ''has been referred'' in Section 11A are no doubt capable of being interpreted as making the Section applicable to References made even prior to 15-12-1971. But is the Section so expressed as to plainly make it applicable to such References? In our opinion, there is no such indication in the Section. In the first place, as we have already pointed out, the Section itself has been brought into effect only some time after the Act had been passed. The proviso to Section 11A which is as much part of the Section, refers to ''in any proceeding under this Section''. Those words are very significant. There cannot be a ''proceeding under this Section'', before the Section itself has come into force. A proceeding under that Section can only be on or after 15-12-1971. That also gives an indication that Section 11A applies only to disputes which are referred for adjudication after the Section has come into force.
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58. We have already expressed our view regarding the interpretation of Section 11A. We have held that the previous law, according to the decisions of this Court, in cases where a proper domestic enquiry had been held, was that the Tribunal had no jurisdiction to interfere with the finding of misconduct except under certain circumstances. The position further was that the Tribunal had no jurisdiction to interfere with the punishment imposed by an employer both in cases where the misconduct is established in a proper domestic enquiry as also in cases where the Tribunal finds such misconduct proved on the basis of evidence adduced before it. These limitations on the powers of the Tribunals were recognized by this Court mainly on the basis that the power to take disciplinary action and impose punishment was part of the managerial functions. That means that the law, as laid down by this Court over a period of years, had recognized certain managerial rights in an employer. We have pointed out that this position has now been changed by Section 11A. The Section has the effect of altering the law by abridging the rights of the employer inasmuch as it gives power to the Tribunal for the first time to differ both on a finding of misconduct arrived at by an employer as well as the punishment imposed by him. Hence, in order to make the Section applicable even to disputes, which had been referred prior to the coming into force of the Section, there should be such a clear, express and manifest indication in the Section. There is no such express indication. An inference that the Section applies to proceedings, which are already pending, can also be gathered by necessary intendment. In the case on hand, no such inference can be drawn as the indications are to be contrary. We have already referred to the proviso to Section 11A which states ''in any proceeding under this Section''. A proceeding under the Section can only be after the Section has come into force. Further, the Section itself was brought into force some time after the Amendment Act was passed. These circumstances as well as the scheme of the Section and particularly the wording of the Proviso indicate that Section 11A does not apply to disputes which had been referred prior to 15-12-1971. The Section applies only to disputes which are referred for adjudication on or after 15-12-1971. To conclude, in our opinion, Section 11A has no application to disputes referred prior to 15-12-1971. Such disputes have to be dealt with according to the decisions of this Court already referred to.
Thus, from the abovesaid decision, it is clear that the disputes referred to prior to the coming into force of Section 11A of the Industrial Disputes Act will not be governed by the provisions of Section 11A. Likewise, the subsequent notification changing the appropriate Government in respect of the particular industry will not in any affect the Reference made by the appropriate Government at the time of making such Reference and that the Government which made the Reference will have the authority to publish the award u/s 17 of the Industrial Disputes Act.
Section 2(a) of the Industrial Disputes Act, 1947 clearly states that:
''appropriate Government'' means:
(i) in relation to any Industrial Disputes concerning any industry carried on by or under the authority of this Central Government or by a Railway company...
Thus, it is clear that the ''appropriate Government will be the Government which makes the Reference of an industrial dispute for adjudication. The subsequent consequence that follows by such Reference is relatable to the said appropriate Government which has referred the matter u/s 10. The proceeding that is continued by virtue of such Reference will have its logical end by passing an award and such award to be published u/s 17 has to be so published by the appropriate Government which referred the matter for adjudication.
We entirely agree with the reasoning and finding of the Labour Court, and as such, we do not find any merits in this Special Civil Application. Accordingly, the Special Civil Application is dismissed. Notice discharged. Interim relief vacated. No costs.
14. In case of
12. Learned Advocate for the respondent lays emphasis on the subsequent amendment made in the definition of ''appropriate Government'' as a result of which the first part of the definition now expressly includes the International Airport Authority of India as an industry in relation to which the appropriate Government for making a Reference is the Central Government. He submitted that the very fact that there was no express Reference to the International Airports of India in the previous definition would show that previously it was not covered under the first part of the definition of the appropriate Government u/s 2(a) by an amendment. According to him, the definition, therefore, prior to its amendment could not have included the International Airports Authority of India in first part. In support of his contention he relied upon certain observations of the Supreme Court in the case of
13. It was submitted by Mr. Talsania, learned Advocate for the petitioner, that the subsequent amendment of Section 2(a)(i) as a result of which the International Airports Authority of India is added to the list of statutory Corporations in Section 2(a)(i) is an amendment which is classificatory in nature. He relied upon the Statement of Objects and Reasons relating to the said amendment, where it is stated that this part of the amendment is being made in, in order to remove certain difficulties which have been experienced. He, therefore, submitted that since the amendment merely clarifies what was already contained in the definition the amendment must be given a retrospective effect and should be applied even in cases of a Reference which was made prior to the coming into operation of the amendment. This submission does not appear to be correct. In the first place, there is nothing to show that the amendment is merely classificatory The Statement of Objects and Reasons shows that the amendment was made in order to remove certain difficulties. It is therefore more curative than classificatory. Such a curative amendment in the absence of any express words to the effect in the amending statute, cannot be given a retrospective effect.
14. Mr. Talsania, relied upon a decision of the Supreme Court in the case of
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17. Since, however, International Airports Authority of India is an industry carried on by or under the authority of the Central Government, the appropriate Government for making a Reference in the present case is the Central Government. It is unfortunate that the initial application of the workman to the Central Government was turned down by the Central Government. It is hoped that in case the workman approaches the Central Government for a Reference, the application will be disposed of expeditiously in view the special circumstances of the case.
15. Division Bench of this Court, in case of Valsad Jilla Sahakari Bank Ltd. v. Assistant Commissioner of Labour and Certifying Officer 1990 (2) GLH 269, observed as under in Paras 7 and 8:
7. Relying on the principle of incorporation, looking to the aforesaid two decisions, it has to be held that if the meaning of a term is incorporated from an Act which has been subsequently repealed or has been subsequently amended, the position available as on the date of passing of the statute wherein the definition has been incorporated from another statute will prevail and will continue to hold the field and any subsequent changes in the incorporated statute will not affect the position vis-a-vis. The statute in which the definition is incorporated.
8. The position therefore to be found in the case before us is that when the said Act came to be enacted the meaning of the term ''industrial establishment'' was to be understood in accordance with the position available at that time, under the Payment of Wages Act, 1936. That clearly excluded the petitioner-Bank and establishment of that type, and as such, the order of certifying authority is clearly without jurisdiction.
16. In case of Saudi Arabian Airlines v. Shehnaz Mudhatkal 1999 (1) CLR 205, Single Judge of Bombay High Court observed as under in Paras 18 and 34 as under:
18. The Reference has been made u/s 10 of Act, which empowers the appropriate Government to refer an industrial dispute, inter alia, for the adjudication of the Labour Court. The term ''appropriate Government'' is defined in Section 2(a) of the Act. Sub-clause (i) of Section 2(a) it enumerates a large number of industries and then provides that in relation to an industrial dispute concerning such industries, the appropriate Government in respect of those industries will be the Central Government. Sub-section (ii) of Section 2(a) provides that in relation to any other industrial dispute, the State Government is the appropriate Government. As the provisions of Section 2(a) stood on the date of Reference i.e. 5th May, 1986, the only Airline industries which fell within the ambit of Section 2(a) were Indian Airlines and Air India Corporations established under the Air Corporations Act, 1953, as enumerated in Clause (i) of Section 2(a) of the said Act. Thus, on the date of the Reference, the State Government was the appropriate Government in respect of an industrial dispute in the establishment of the petitioner, and therefore, the Reference was validly made to the Labour Court u/s 10(1)(c) of the Act. Section 2(a)(1) of the Act was amended by Ordinance of 1995 (Ordinance No. 12 of 1995) which came into force from 11th October, 1995. This Ordinance came to be replaced by the Industrial Disputes (Amendment) Act, 1996 (No. 24 of 1996) which also was brought into force from 11th October, 1995. The result of the amendment as far as we are concerned, is that the words ''an insurance company'' were were added at the end of sub Clause (i) of Section 2(a) of the said Act. As a consequence of this amendment, the ''appropriate Government'' in relation to an industrial dispute in any Air Transport Services Industry would be the Central Government from 11th October, 1985.
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34. Mr. Anand Grover, learned Advocate appearing for the 1st respondent drew my attention to a judgment in Indian Oil Corporation v. Mahendrabhai R. Patel 1987 (54) FLR 490 , a decision of the Division Bench of Gujarat High Court. The Division Bench in this case placed reliance on the observations of the Supreme Court in the case of
17. Aforesaid decision given by learned Single Judge of Bombay High Court was challenged before Division Bench and Division Bench of Bombay High Court confirmed it in case of Saudi Arabian Airlines v. Shehnaz Mudhatkal 1999 (2) CLR 766. Relevant observations made by Division Bench of Bombay High Court in Paras 1, 2 and 3 are quoted as under:
The learned Single Judge on detailed clarification of the facts and the case-law, has concluded that an overall view of the case before the Labour Court brings out that the 1st respondent a lady was subjected to continuous sexual harassment by her superior official Bahrani. The operative Paragraph of the judgment of the learned Single Judge reads as under:
An overall view of the case before the Labour Court brings out that the 1st respondent, a lady, was subject to continuous sexual harassment by her superior official, Bahrani. The 1st respondent protested vigorously and complained to higher officers. This resulted in an ''operative scuttle''. First, the 1st respondent was threatened that her husband''s employment in Saudi Arabia would be terminated by using the petitioner''s influence with the Saudi Arabian Government. Second, she was forced to give an apology. Third, when the sexual harassment continued and the 1st respondent once again took up the matter with the highest authorities in the petitioner company, the petitioner decided to summarily terminate the services of the 1st Respondent by putting forth concocted and baseless reasons and carried it into effect. In these circumstances, the 1st respondent has been victimized for her refusal to submit herself to the sexual demands of her superior. The conduct of Bahrani would squarely fit in with the concept of ''sexual harassment'' as defined by the Supreme Court in the case of
2. Having heard the learned Counsel for the appellants at length, we are unable to accept the contention that the finding of sexual harassment arrived at in the award and upheld by the learned Single Judge is perverse. We are in agreement with the observation of the learned Single Judge that the conduct of the officer of the appellants squarely falls within the concept of ''sexual harassment'' in terms of the decision of the Supreme Court in
3. There is also no substance in the contention that, on coming into force of the Industrial Disputes (Amendment) Act, 1996, the appropriate Government on the case in hand would become the Central Government and would affect the proceedings which were pending. This does not appear to be the intention of the legislation, as has been held by the learned Single Judge. We are also in respectful agreement with the opinion of the Gujarat High Court in Indian Oil Corporation v. Mahendrabhai R. Patel 1987 (54) FLR 490.
18. Division Bench of this Court examined identical question in
6. We have considered the submissions advanced at the Bar and the documents forming part of the petition. In order to resolve the dispute raised in the appeal, it would be relevant to notice certain provisions of the Industrial Disputes Act, 1947 and other relevant statutes. Section 2(a) of the Industrial Disputes Act, 1947 defines ''appropriate Government'' and reads as under:
2(a) : ''appropriate Government'' means:
(i) in relation to any Industrial Disputes concerning any industry carried on by or under the authority of the Central Government or by a Railway company or concerning any such controlled industry as may be specified in this by the Central Government or in relation to an Industrial Dispute concerning a Dock Labour Board established u/s 5A of the Dock Workers (Regulation of Employment) Act, 1948 (9 of 1948), or the Industrial Finance Corporation of India established u/s 3 of the Industrial Finance Corporation Act, 1948 (15 of 1948), or the Employees'' State Insurance Corporation established u/s 3 of the Employees'' State Insurance Act, 1948 (34 of 1948), or the Board of Trustees constituted u/s 3A of the Coal Mines Provident Fund and Miscellaneous Provisions Act, 1948 (46 of 1948), or the Central Board of Trustees and the State Boards of Trustees constituted u/s 5A and Section 5B respectively of the Employees'' Provident Fund and Miscellaneous Provisions Act, 1952 (19 of 1952), or the "Indian Airlines" and "Air India" Corporations established u/s 3 of the Air Corporations Act, 1953 (27 of 1953), or the Life Insurance Corporation of India established u/s 3 of the Life Insurance Corporation Act, 1956 (31 of 1956), or the Oil and Natural Gas Commission established u/s 3 of the Oil and Natural Gas Commission Act, 1959 (43 of 1959) or the Deposit Insurance and Credit Guarantee Corporation established u/s 3 of the Deposit Insurance and Credit Guarantee Corporation Act, 1961 (47 of 1961), or the Central Warehousing Corporation established u/s 3 of the Warehousing Corporations Act, 1962 (58 of 1962), or the Unit Trust of India established u/s 3 of the Unit Trust of India Act, 1963 (52 of 1963), or the Food Corporation of India established u/s 3, or a Board of Management established for two or more contiguous States u/s 16 of the Food Corporations Act, 1964 (37 of 1964), or the International Airports Authority of India constituted u/s 3 of the International Airports Authority of India Act, 1971 (43 of 1971), or a Regional Rural Bank established u/s 3 of the Regional Rural Bank Act, 1976 (21 of 1976), or the Export Credit and Guarantee Corporation Limited or the Industrial Reconstruction Bank of India, or the Banking Service Commission established, u/s 3 of the Banking Service Commission Act, 1975 or a Banking or an Insurance Company, a Mine, an Oil Field a Cantonment Board, or a major port, the Central Government, and
(ii) in relation to any other Industrial Dispute, the State Government;
7. Section 5(1)(C) of the Banking Regulations Act, 1949 also defines the phrase "Banking Company" to mean any Company which transacts the business of Banking in India. A bare reading of the above-quoted provisions makes it evident that a Bank which transacts business of Banking is a ''Banking Company'' within the meaning of Section 2(bb) of the Industrial Disputes Act, 1947 provided it has branches or other establishment in more than one State. As noted earlier, the respondent has its branches all over the State of Gujarat and also a regional Branch at Dadra Nagar Haveli, which is a Union Territory. A Division Bench of this High Court had occasion to consider the question whether the respondent which is having one of its regional branches at Dadra Nagar Haveli (Selvas), is governed by the Bombay Industrial Relations Act, 1946. The Division Bench in Special Civil Application No. 249 of 1982 decided on April 22, 1990 noted that the proviso to Sub-section (3) of Section 2 of the Bombay Industrial Relations Act provides that the said Act will not apply to any Banking Company as defined in Section 6 of the Banking Companies Act of 1949 having branches or other establishments in more than one State. The Division Bench noted the admitted fact that one of regional branches of the respondent is located at Dadra Nagar Haveli, which is a Union Territory and proceeded to consider the contention raised that Dadra Nagar Haveli being Union Territory should not be considered to be a ''State''. The said contention was negatived by the Division Bench holding that Dadra Nagar Haveli is a ''State'' within the meaning of Proviso to Section 2(3) of the Bombay Industrial Relations Act read with provisions of Section 3(58) of the General Clauses Act, 1897. Thus, the question whether the respondent is a Banking Company having its branches in more than one State, is no more res integra and we hold that the respondent is a Banking Company having its branches in more than one State. Section 2(aa) of the Industrial Disputes Act, inter alia, provides that in relation to any industrial disputes concerning any industry carried on by a Banking or Insurance Company, the Central Government is the appropriate Government. As the dispute between the appellant and the respondent is a dispute between a Banking Company and its employee, Reference of dispute could have been made only by the Central Government in view of provisions of Section 10 of the Industrial Disputes Act, 1947. At this stage, it would be relevant to notice the provisions of Section 4 of the Industrial Disputes (Banking and Insurance Companies) Act, 1949. Section 4 of the said Act reads as follows:
4. Prohibition of Reference by State Government of certain industrial disputes for adjudication, inquiry or settlement:
Notwithstanding anything contained in any other law, it shall not be competent for a State Government or any officer or authority subordinate to such Government to refer an industrial dispute concerning any Banking Company or Insurance Company, or any matter relating to such disputes, to any Tribunal or other authority for adjudication, inquiry or settlement.
8. A bare reading of the above-referred to provision makes it manifest that it is not competent for the State Government or any officer or authority subordinate to State Government, to refer an industrial dispute concerning any Banking Company or any matter relating to such dispute, to any Tribunal or other authority for adjudication, inquiry or settlement, notwithstanding anything contained in any other law. The prohibition mentioned in Section 4 of the said Act is absolute and does not admit of any exception. A conjoint reading of Sections 2(aa), 2(bb) and 10 of the Industrial Disputes Act, 1947 read with Section 5(1)(C) of the Banking Regulation Act, 1949 and Section 4 of the Industrial Disputes (Banking and Insurance Companies) Act, 1949 makes it abundantly clear that the dispute between the appellant and the respondent could not have been referred for its adjudication to the Labour Court by the State Government and the Reference itself was void ab-initio. It is needless to point out that the award based on an incompetent Reference is a nullity, and therefore, in our view, the learned Single Judge was justified in setting aside the same.
9. The contention that no prejudice having been caused to the respondent, award rendered in favour of the respondent should not have been set aside by the learned Single Judge, has no merits. The scheme as envisaged under the Industrial Disputes Act is such that adjudication of a dispute referred by the Central Government can be made only by the Industrial Tribunal and not by any other forum. Thus, the forum which gets jurisdiction to adjudicate the dispute also changes when the Reference of the same is made by the Central Government. The prejudice is inherent in a Reference which is made by an incompetent authority, and therefore, it is difficult to uphold award rendered by the Labour Court in favour of the appellant on the ground that no prejudice is caused to the respondent.
10. The argument that the respondent has not obtained Banking licence u/s 22 of the Banking Regulation Act, 1949, and therefore, cannot be regarded as ''Banking Company'', has also no substance. The relevant documents produced by the learned Counsel for the respondent - Bank indicate that the respondent had made an application dated June 17, 1970 for obtaining Banking licence and the same was granted by the Reserve Bank of India vide order dated October 13, 1999. It is further to be noted that Saurashtra Small Industries Co-operative Bank Ltd. Rajkot, which is registered under the Co-operative Societies Act as applicable to the Saurashtra State and the Southern Gujarat Co-operative Bank Ltd. Surat registered under the Bombay Co-operative Societies Act, had decided to amalgamate themselves and form the State Industrial Co-operative Bank. As a result of the said decision, the above-referred to two Co-operative Banks were amalgamated and the Gujarat Industrial Co-operative Bank Ltd., which is respondent in the appeal was formed. This is quite evident from the order dated May 21, 1970 passed by the Registrar, Co-operative Societies, Gujarat State, Ahmedabad u/s 17 of the Gujarat Co-operative Societies Act, 1961. Section 56 of the Banking Regulation Act, 1949 provides that the provisions of this Act, as in force for the time being, shall apply to, or in relation to Co-operative Societies as they apply to, or in relation to Banking Companies subject to modification indicated therein. The provisions of Section 56(o)(2) proviso (ii) stipulate that a Co-operative Bank which has come into existence as a result of the amalgamation of two or more Co-operative societies carrying on Banking business is not precluded from carrying on Banking business until it is granted a licence or is by a notice in writing notified by the Reserve Bank of India that licence cannot be granted to it. Therefore, till the grant of licence, the respondent was entitled to carry on Banking business and was a Banking Company within the provisions of The Banking Regulation Act, 1949. In view of this position, it is difficult to agree with the submission made by the learned Counsel for the appellant that as the respondent had no valid Banking licence, it should not be regarded as ''Banking Company, and Reference at the instance of the State Government should be treated as competent.
19. In case of
125. The upshot of the above discussion is outlined thus:
(1)(a) Before January 28, 1986, the determination of the question whether Central Government or the State Government, is the appropriate Government in relation to an establishment, will depend, in view of the definition of the expression appropriate Government as stood in the C.L.R.A. Act, on the answer to a further question, is the industry under consideration carried on by or under the authority of the Central Government or does it pertain to any specified controlled industry; or the establishment of any Railway, Cantonment Board, major Port, Mine or Oil-Field or the establishment of Banking or Insurance Company? If the answer is in the affirmative, the Central Government will be the appropriate Government; otherwise in relation to any other establishment the Government of the State in which the establishment was situated, would be the appropriate Government, (b) After the said date in view of the new definition of that expression, the answer to the question referred to above, has to be found in Clause (a) of Section 2 of the Industrial Disputes Act; if (i) the concerned Central Government company/undertaking or any undertaking is included therein eo nomine, or (ii) any industry is carried on (a) by or under the authority of the Central Government, or (b) by Railway company; or (c) by specified controlled industry, then the Central Government will be the appropriate Government otherwise in relation to any other establishment, the Government of the State in which that other establishment is situated, will be the appropriate Government.
(2)(a) A notification u/s 10(1) of the C.L.R.A. Act prohibiting employment of contract labour in any process, operation or other work in any establishment has to be issued by the appropriate Government:
(1) after consulting with the Central Advisory Board or the State Advisory Board, as the case may be, and;
(2) having regard to
(i) conditions of work and benefits provided for the contract labour in the establishment in question; and (ii) other relevant factors including those mentioned in Sub-section (2) of Section 10;
(b) inasmuch as the impugned notification issued by the Central Government on December 9, 1976 does not satisfy the aforesaid requirements of Section 10, it is quashed but we do so prospectively i.e. from the date of this judgment and subject to the clarification that on the basis of this judgment no order passed or no action taken giving effect to the said notification on or before the date of this judgment, shall be called in question in any Tribunal or Court including a High Court if it has otherwise attained finality and/or it has been implemented.
(3) Neither Section 10 of the C.L.R.A. Act nor any other provision in the Act, whether expressly or by necessary implication, provides for automatic absorption of contract labour on issuing a notification by appropriate Government under Sub-section (1) of Section 10, prohibiting employment of contract labour, in any process, operation or other work in any establishment. Consequently, the principal employer cannot be required to order absorption of the contract labour working in the concerned establishment;
(4) We overrule the judgment of this Court in Air India''s case (supra) prospectively and declare that any direction issued by any industrial adjudicator/any Court including High Court, for absorption of contract labour following the judgment in Air India''s case (supra), shall hold good and that the same shall not be set aside, altered or modified on the basis of this judgment in cases where such a direction has been given effect to and it has become final.
(5) On issuance of prohibition notification u/s 10(1) of the C.L.R.A. Act prohibiting employment of contract labour or otherwise, in an industrial dispute brought before it by any contract labour in regard to conditions of service, the industrial adjudicator will have to consider the question whether the contractor has been interposed either on the ground of having undertaken to produce any given result for the establishment or for supply of contract labour for work of the establishment under a genuine contract or is a mere ruse/camouflage to evade compliance of various beneficial legislations so as to deprive the workers of the benefit thereunder. If the contract is found to be not genuine but a mere camouflage, the so-called contract labour will have to be treated as employees of the principal employer who shall be directed to regularise the services of the contract labour in the concerned establishment subject to the conditions as may be specified by it for that purpose in the light of Para 6 hereunder.
(6) If the contract is found to be genuine and prohibition notification u/s 10(1) of the C.L.R.A. Act in respect of the concerned establishment has been issued by the appropriate Government, prohibiting employment of contract labour in any process, operation or other work of any establishment and wherein such process, operation or other work of the establishment the principal employer intends to employ regular workmen he shall give preference to the erstwhile contract labour, if otherwise found suitable and, if necessary, by relaxing the condition as to maximum age appropriately taking into consideration the age of the workers at the time of their initial employment by the contractor and also relaxing the condition as to academic qualifications other than technical qualifications.
20. In light of aforesaid various decisions relating to question raised by petitioner-Bank in this case and also considering recent decision of Apex Court in case of Bharat Co-operative Bank Ltd., whether it would apply with retrospective effect or that it amounts to declaration of law in prospective effect, has been considered by Apex Court in case of Bahuram v. C.C. Jacob 1999 Lab.IC 2084. Relevant observations made by Apex Court in Paras 2, 3, 4 and 5 are reproduced as under:
2. Since, the law in regard to the above-stated position was nebulous, a Constitution Bench of this Court in the case of
The question that arises for our consideration in this case is : was it open to the Tribunal to apply the law laid down in R. K. Sabharwal''s case (supra) to the facts of the case in hand.
3. The brief facts necessary for the purpose of deciding this question are that in June, 1993, the Departmental Promotion Committee (for short ''the D.P.C) considered the suitability of candidates eligible for promotion to four vacancies which arose during 1993-1994 in the cadre of Superintendent of Customs (Preventive) from the post of Preventive Officers in which proceedings of the D.P.C. the appellant was chosen to be promoted against a reserved vacancy earmarked for the Scheduled Castes. The said decision of the D.P.C. was challenged before the Tribunal on 27-1-1994 wherein the applicants contended that they are entitled to be considered for promotion to the category of Superintendent of Customs in the concerned vacancy, treating these vacancies as unreserved. Consequently, they prayed that their case be considered for promotion on merits. During the pendency of the applications before the Tribunal, the appellants herein came to be promoted on 26-6-1994 as against a reserved vacancy which arose on 1-6-1994. The Tribunal on 22-9-1995 following the judgment of this Court in the Sabharwal''s case (supra), allowed the applications and held that there had been an erroneous application of the principle of reservation resulting in appointment of Scheduled Caste candidates in excess of the quota earmarked for them. It directed the concerned respondents to recalculate the entitlements of different categories and take further action applying the quota rule to the cadre and not to the vacancies as they arose. It further directed that till the quota is correctly maintained, no appointment will be made from the groups which have exceeded the quota reserved for them. As noted above, the finding of the Tribunal is based on the ratio of the judgment laid down by this Court in Sabharwal''s case (supra). The contention of the appellant in these appeals is that the judgment in Sabharwal''s case was made effective prospectively, hence, the same could not have been applied to the promotion of the appellant. This contention was negatived by the Tribunal on the ground that the decision of the D.P.C. in selecting the appellant does not amount to an appointment and in view of the fact that the appellant''s promotion was made subsequent to filing of the petition, the appellant cannot claim the benefit of the prospectivity given to the Sabharwal''s judgment by this Court.
4. We are unable to agree with this view of the Tribunal. It is to be noted that the prospectivity given to Sabharwal''s case was obviously on the ground that there was a doubt in regard to the position of law until the same was clarified by this Court in Sabharwal''s case. The decision of the D.P.C. was taken in June, 1993; much prior to the judgment in Sabharwal''s case. It is only pursuant to the decision of the D.P.C, the appellant came to be promoted on 27-6-1994 which is also a date prior to the delivery of the judgment in Sabharwal''s case. In our opinion, the prospectivity was given to Sabharwal''s case only to see that status prevailing prior to the judgment in Sabharwal''s case should not be disturbed.
5. The prospective declaration of law is a device innovated by the Apex Court to avoid reopening of settled issues and to prevent multiplicity of proceedings. It is also a devise adopted to avoid uncertainty and avoidable litigation. By the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law prior to its date of declaration are validated. This is done in the larger public interest. Therefore, the subordinate forums which are legally bound to apply the declaration of law made by this Court are also duty-bound to apply such dictum to cases which would arise in future only. In matters where decisions opposed to the said principle have been taken prior to such declaration of law cannot be interfered with on the basis of such declaration of law. In the instant case, both decisions of the D.P.C. as well as the appointing authority being prior to the judgment in Sabharwal''s case, we are of the opinion that the Tribunal was in error in applying this decision. For this reason, these appeals succeed and are hereby allowed; setting aside the orders and directions made by the Tribunal in O.A. Nos. 186 of 1994 and 961 of 1995.
21. In light of aforesaid decision, where it is made clear by Apex Court that the prospective declaration of law is device innovated by Apex Court to avoid reopening of settled issues and to prevent multiplicity of proceedings, and to avoid uncertainty and avoidable litigation by the very object of prospective declaration of law, it is deemed that all actions taken contrary to the declaration of law prior to its date of declaration are validated. This is done in the larger interest of public so that the subordinate forums which are legally bound to apply the declaration of law made can apply such dictum to cases which would arise in future only. In the matters where decisions opposed to the said principle have been taken prior to such declaration of law cannot be interfered with on the basis of such declaration of law. Similarly, decision of Apex Court relied upon by learned Advocate Mr. K. D. Gandhi in case of Bharat Co-operative Bank Ltd., it is merely declaration of law in respect to petitioner-Bank that the appropriate Government is now State Government and not the Central Government. Such declaration of law would always apply with prospective effect and would not apply to pending cases where decision has already been taken by the competent authority. Therefore, contention raised by learned Advocate Mr. Gandhi cannot be accepted. In Bharat Co-op. Bank Ltd. (supra), Apex Court has examined only short question in respect to Bharat Co-op. Bank Ltd. as discussed in Paras 11, 12, 13, 14, 21, 26, 27, 28 and 29. Therefore, said observations are reproduced as under:
11. The I.D. Act came into force with effect from 1st April, 1947. The term "appropriate Government" was defined in Section 2(a). However, Sub-clause (i) of Clause (a) came to be amended in the year 1949 by the amendment Act 54 of 1949, whereby in relation to any industrial dispute concerning a "Banking Company" or Insurance Company, the Central Government was declared to be the "appropriate Government". Simultaneously, Section 2(bb) was inserted by the same Act, defining the "Banking Company". Needless to add that it is only those Banking Companies which fall within the ambit of the definition in the said provision that the Central Government would be the appropriate government. With respect to other Banking companies, the State Government, in which the Bank is situated, would be the appropriate Government in terms of Sub-clause (ii) of Clause (a) of Section 2 of the I.D. Act. Section 2(bb) which is at the centre of controversy reads as under:
2(bb). "Banking Company" means a Banking Company as defined in Section 5 of the Banking Companies Act, 1949 (10 of 1949) having branches or other establishments in more than one State and includes (the Export-Import Bank of India) (the Industrial Reconstruction Bank of India), (the Industrial Development Bank of India), (the Small Industries Development Bank of India established u/s 3 of the Small Industries Development Bank of India Act, 1989), the Reserve Bank of India, the State Bank of India (a corresponding new Bank constituted u/s 3 of the Banking Companies (Acquisition and Transfer of Undertakings Act, 1970 (5 of 1970) (a corresponding new Bank constituted u/s 3 of the Banking Companies (Acquisition and Transfer of Undertakings) Act, 1980 (40 of 1980), and any subsidiary Bank), as defined in the State Bank of India (Subsidiary Banks) Act, 1959 (38 of 1959).
From a bare reading of the Section it is clear that in order to fall within the meaning of this definition, a "Banking Company" has to satisfy two requirements, viz : (i) it should be a "Banking Company" as defined in Section 5 of the Banking Companies Act, 1949, and (ii) it should have branches or other establishments in more than one State. It may also be noted that some Banks, by name, have specifically been included in the definition. Section 5 of the B.R. Act gives interpretation to various expressions used in the said Act. As per Clause (c) of Section 5 the expression "Banking Company" means any "Company" which transacts the business of Banking in India. According to Section 5(b) "Banking" means the accepting, for the purpose of lending or investment, of deposits of money from the public, repayable on demand or otherwise and withdrawable by cheque, draft, order or otherwise. The expression "Company" has been interpreted in Clause (d) of Section 5 to mean any Company as defined u/s 3 of the Companies Act, 1956 and includes foreign company within the meaning of Section 591 of that Act. Indubitably, the appellant-Bank is not a Company within the meaning of the said clause. However, by the Act 23 of 1965 several amendments were carried out in the B.R. Act with effect from 1st March, 1966, widening the scope of the said Act. By that amendment Part-V, containing only one Section 56, providing for application of B. R. Act to Co-operative Banks, like the appellant-Bank, was inserted. Section 3 was substituted to declare that the provisions of the B. R. Act shall apply to a Co-operative Society only in the manner and to the extent specified in Part-V thereof.
The main question raised for determination is whether the afore-noted amendments to the B. R. Act, particularly insertion of Section 56 in the new format w.e.f. 1st March, 1966, after the insertion of the definition of "Banking Company" in the I.D. Act by Act 54 of 1949 will apply mutatis mutandis to the matters governed by the I. D. Act?
As there is no indication in the I. D. Act as to the applicability or otherwise of the subsequent amendments in the B. R. Act, the question posed has to be answered in the light of the two concepts of statutory interpretation, namely, incorporation by Reference and mere Reference or citation of one statute into another. Thus, answer to a rather intricate question hinges on the test whether at the time of insertion of the definition of the term "Banking Company" in the form of Sub-section (bb) of Section 2 of the I. D. Act by the 1949 Act it was a mere Reference to the Banking Companies Act, 1949 (later re-christened as the Banking Regulation Act) or the intendment of the legislature was to incorporate the said definition as it is in the I. D. Act?
Before adverting to the said core issue, we may briefly notice the distinction between the two afore-mentioned concepts of statutory interpretation, viz., a mere Reference or citation of one statute in another and incorporation by Reference. Legislation by incorporation is a common legislative device where the legislature, for the sake of convenience of drafting incorporates provisions from an existing statute by Reference to that statute instead of verbatim reproducing the provisions, which it desires to adopt in another statute. Once incorporation is made, the provision incorporated becomes an integral part of the statute in which it is transposed, and thereafter, there is no need to refer to the statute from which the incorporation is made and any subsequent amendment made in it has no effect on the incorporating statute. On the contrary, in the case of a mere Reference or citation, a modification, repeal or re-enactment of the statute, that is referred will also have effect on the statute in which it is referred. The effect of "incorporation by Reference" was aptly stated by Lord Esher, M. R. In Re : Wood''s Estate, Ex parte Her Majesty''s Commissioners of Works and Buildings in the following words at page 615:
If a subsequent Act brings into itself by Reference some of the clauses of a former Act, the legal effect of that, as has often been held, is to write those Sections into the new Act just as if they had been actually written in it with the pen, or printed in it, and the moment you have those clauses in the later Act, you have no occasion to refer to the former Act at all.
xxx xxx xxx
21. The plain language of Section 2(bb) of the I. D. Act makes the intention of the legislature very clear and we have no hesitation in holding that Reference to Section 5 of the Banking Companies Act, 1949 in the said provision is an instance of legislation by incorporation and not legislation by Reference.
24. We are, therefore, of the opinion that introduction of the Banking Companies Act, 1949 in Clause (bb) of Section 2 of the I. D. Act is a case of incorporation by Reference; it has become its integral part and therefore, subsequent amendments in the B. R. Act would not have any effect on the expression "Banking Company" as defined in the said Section.
26. In our view, there is no substance in the contention. The I. D. Act is a complete and self-contained Code in itself and its working is not dependant on the B. R. Act. It could not also be said that the amendments in the B. R. Act either expressly or by necessary intendment applied to the I. D. Act. We, therefore, reject the contention advanced by learned Counsel for the appellant on this aspect as well.
27. Further, as noticed above, the definition of the "Banking Company" in Clause (bb) of Section 2 of the I. D. Act being exhaustive, it is only with respect to the "Banking Company" falling within the ambit of the said definition in the I. D. Act, that the Central Government would be the appropriate government, which admittedly is not the case here.
28. In the light of the analysis we have made of the provision contained in Section 2(bb) of the I. D. Act, we deem it unnecessary to dilate on the impact of the I.D.B.I.C. Act on the I. D. Act.
29. For all these reasons, we have no hesitation in upholding the view taken by the High Court that for the purpose of deciding as to which is the "appropriate Government", within the meaning of Section 2(a) of the I. D. Act, the definition of the "Banking Company" will have to be read as it existed on the date of insertion of Section 2(bb) and so read, the "appropriate Government" in relation to a multi-state co-operative Bank, carrying on business in more than one state, would be the State Government.
22. In view of the aforesaid observations made by Apex Court in Bharat Co-op. Bank Ltd. (supra), where existing law has been clarified by Apex Court, meaning thereby, it is a declaration of law while interpreting relevant provisions having effect, being prospective declaration of law, cannot apply to all pending cases where such question was not at all raised prior to the aforesaid decision of Apex Court and where party concerned had submitted to the jurisdiction of authority concerned without raising any such contention prior to aforesaid decision of Apex Court. Law which was in existence and and on that basis, whatever action or decision was taken cannot be disturbed by recent decision given by Apex Court in Bharat Co-op. Bank Ltd. Because it is having only prospective declaration of law because it is a clear case of clarified legal position by Apex Court in Bharat Co-op. Bank Ltd. (supra), therefore it must apply or to be operative prospectively and not with retrospective effect, therefore, contentions raised by learned Advocate Mr. Gandhi cannot be accepted. Same are, therefore, rejected.
23. In light of the aforesaid observations made by Apex Court in case of Bahuram v. C.C. Jacob (supra) as refered to above, law which is clarified by Apex Court in case of Bharat Co-op. Bank Ltd. Is a declaration of law apply with prospective effect and not with retrospective effect, therefore, Industrial Tribunal (Central) has rightly decided application Exh. 48 and has rightly considered contentions raised by petitioner-Bank and has rightly considered reply given by respondent Exh. 51 and has also rightly come to conclusion that the decision of Apex Court in Bharat Co-op. Bank Ltd. (supra) is not applicable to facts of present case and it applies with prospective effect and has also rightly considered hardship as well as legal harassment which has been caused to workman, and therefore, according to my opinion, Industrial Tribunal (Central) has rightly examined matter and has rightly decided application Exh. 48, for that, Industrial Tribunal (Central) has not committed any error which would require interference of this Court in exercise of powers under Article 227 of the Constitution of India.
24. Recently, the Apex Court has examined similar aspect in the case of
17. Before concluding, we consider it necessary to observe that while exercising jurisdiction under Articles 226 and/or 227 of the Constitution in matters like the present one, the High Courts are duty-bound to keep in mind that the Industrial Disputes Act and other similar legislative instruments are social welfare legislations and the same are required to be interpreted keeping in view the goals set out in the Preamble of the Constitution and the provisions contained in Part IV thereof in general and Articles 38, 39(a) to (e), 43 and 43A in particular, which mandate that the State should secure a social order for the promotion of welfare of the people, ensure equality between men and women and equitable distribution of material resources of the community to subserve the common good and also ensure that the workers get their dues. More than 41 years ago, Gajendragadkar, J, opined that ''the concept of social and economic justice is a living concept of revolutionary import; it gives sustenance to the rule of law and meaning and significance to the ideal of welfare State -
18. In
The anxiety on the part of the society for improving the general economic condition of some of its less favoured members appears to be in supercession of the old principle of absolute freedom of contract and the doctrine of laissez faire and in recognition of the new principles of social welfare and common good. Prior to our Constitution, this principle was Advocated by the movement for liberal employment in civilised countries and the Act which is a pre-constitution measure was the offspring of that movement. Under our present Constitution, the State is now expressly directed to endeavour to secure to all workers (whether agricultural, industrial or otherwise) not only bare physical subsistence but a living wage and conditions of work ensuring a decent standard of life and full enjoyment of leisure. This Directive Principle of State Policy being conducive to the general interest of the nation as a whole, merely lays down the foundation for appropriate social structure in which the labour will find its place of dignity, legitimately due to it in lieu of its contribution to the progress of national economic prosperity.
19. The Preamble and various Articles contained in Part IV of the Constitution promote social justice so that life of every individual becomes meaningful and he is able to live with human dignity. The concept of social justice engrafted in the Constitution consists of diverse principles essentially for the orderly growth and development of personality of every citizen. Social justice is thus an integral part of justice in the generic sense. Justice is the genus, of which social justice is one of its species. Social justice is a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived Sections of the society and to elevate them to the level of equality to live a life with dignity of person. In other words, the aim of social justice is to attain substantial degree of social, economic and political equality, which is the legitimate expectation of every Section of the society. In a developing society like ours which is full of unbridgeable and ever widening gaps of inequality in status and of opportunity, law is a catalyst to reach the ladder of justice. The philosophy of welfare State and social justice is amply reflected in large number of judgments of this Court, various High Courts, National and State Industrial Tribunals involving interpretation of the provisions of the Industrial Disputes Act, Factories Act, Payment of Wages Act, Minimum Wages Act, Payment of Bonus Act, Workmen''s Compensation Act, the Employees Insurance Act, the Employees Provident Funds and Miscellaneous Provisions Act and the Shops and Commercial Establishments Act enacted by different States.
36. Therefore, it is clearly the duty of the judiciary to promote a social order in which justice, economic and political informs all the institution of the national life. This was also made clear in Kesavananda Bharati (supra) by Justice Mathew at Para 1728, p. 1952 and His Lordship held that the Directive Principles nevertheless are:
...fundamental in the governance of the country and all the organs of the State, including the judiciary are bound to enforce those directives. The Fundamental Rights themselves have no fixed content; most of them are mere empty vessels into which each generation must pour its content in the light of its experience.
37. In view of such clear enunciation of the legal principles, I am in clear agreement with Brother J. Singhvi that this Court has a duty to interpret statutes with social welfare benefits in such a way as to further the statutory goal and not to frustrate it. In doing so this Court should make an effort to protect the rights of the weaker Sections of the society in view of the clear constitutional mandate discussed above.
38. Thus, social justice, the very signature tune of our Constitution and being deeply embedded in our Constitutional ethos in a way is the arch of the Constitution which ensures rights of the common man to be interpreted in a meaningful way so that life can be lived with human dignity.
39. Commenting on the importance of Article 38 in the Constitutional scheme, this Court in
40. In Indra Sawhney v. Union of India 1992 Supp. (3) SCC 217, the Constitution Bench of the Supreme Court held that:
The content of the expression "equality before law" is illustrated not only by Articles 15 - 18 but also by the several Articles in Part IV, in particular, Articles 38, 39, 39A, 41 and 46. [at Paras 643, pg. 633]
41. Therefore, the Judges of this Court are not mere phonographic recorders but are empirical social scientists and the interpreters of the social context in which they work. That is why it was said in
42. I am in entire agreement with the aforesaid view and I share the anxiety of my Lord Brother Justice Singhvi about a disturbing contrary trend which is discernible in recent times and which is sought to be justified in the name of globalisation and liberalisation of economy.
43. I am of the view that any attempt to dilute the constitutional imperatives in order to promote the so-called trends of ''Globalisation'', may result in precarious consequences. Reports of suicidal deaths of farmers in thousands from all over the country along with escalation of terrorism throw dangerous signal. Here, if we may remember Tagore who several decades ago, in a slightly different context spoke of eventualities which may visit us in our mad rush to ape western ways of life. Here if I may quote the immortal words of Tagore:
1. We have for over a century been dragged by the prosperous West behind its chariot, choked by the dust, deafened by the noise, humbled by our own helplessness and overwhelmed by the speed. We agreed to acknowledge that this chariot-drive was progress, and the progress was civilization. If we ever ventured to ask ''progress toward what, and progress for whom, it was considered to be peculiarly and ridiculously oriental to entertain such ideas about the absoluteness of progress''. Of late, a voice has come to us to take count not only of the scientific perfection of the chariot but of the depth of the ditches lying in its path.
Recently Apex Court has considered scope of Article 227 of Constitution of India in case of State of Haryana v. Manoj Kumar reported in 2010 AIR SCW 1990 decided on 9th March, 2010. The relevant Paras 22 to 29 are quoted as under:
22. The appellants urged that the jurisdiction of the High Court under Article 227 is very limited and the High Court, while exercising the jurisdiction under Article 227, has to ensure that the Courts below work within the bounds of their authority.
23. More than half a century ago, the Constitution Bench of this Court in
24. This Court placed reliance on Nagendra Nath''s case in a subsequent judgment in
25. This Court had an occasion to examine this aspect of the matter in the case of
The supervisory jurisdiction conferred on the High Courts under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority," and not to correct an error apparent on the face of the record, much less an error of law for this case there was, in our opinion, no error of law much less an error apparent on the face of the record. There was no failure on the part of the learned Subordinate Judge to exercise jurisdiction nor did he act in disregard of principles of natural justice. Nor was the procedure adopted by him not in consonance with the procedure established by law. In exercising the supervisory power under Article 227, the High Court does not act as an Appellate Court or Tribunal. It will not review or reweigh the evidence upon which the determination of the inferior Court or Tribunal purports to be based or to correct errors of law in the decision.
26. This Court again clearly reiterated the legal position in
27. A three-Judge Bench of this Court in
28. In
29. This Court over 50 years has been consistently observing that limited jurisdiction of the High Court under Article 227 cannot be exercised by interfering with the findings of fact and set aside the judgments of the Courts below on merit.
25. In view of the recent decision of Apex Court as referred to above and also considering observations made by Apex Court while exercising powers under Article 227 of Constitution of India and also considering peculiar facts of the case before hand where petitioner had surrendered to the order of Reference and not raised such contention till the pronouncement of judgment by Apex Court in case of Bharat Co-op. Bank Ltd. (supra) and filed such application Exh. 48, that too after remand of matter by this Court in petition referred to above and considering approach of the petitioner to disturb the pending proceedings before Industrial Tribunal (Central) and also to see that in such a manner, poor workman must be ruined during pendency of proceedings and so, he may not be able to get job (justice) till final outcome of legal proceedings which has been initiated in the year 1995 initially before State Government where objection was raised by present petitioner that in case of petitioner-Bank, appropriate Government is Central Government and not State Government and pursuant to such objection, petitioner raised industrial dispute before Central Government where matter was referred to for adjudication by appropriate Government (Central) to Industrial Tribunal, according to my opinion, such efforts made by petitioner-Bank being a mighty employer against poor workman who is out of job since 1991 should not have to be encouraged by this Court while exercising powers under Article 227 of the Constitution of India. Therefore, there is no substance in this petition and order passed by Industrial Tribunal (Central) below Exh. 48 is legal and valid order requiring no interference of this Court in exercise of powers under Article 227 of Constitution of India. Therefore, there is no substance in this petition and same is, therefore, required to be dismissed.
26. It is necessary to note that initially, order of Reference made by Central Government was not challenged by petitioner. No such contention was raised by petitioner in written statement before Labour Court while challenging Reference. While challenging award passed by Industrial Tribunal (Central) before this Court, no such contention was raised by petitioner about legality, validity and propriety of order of Reference. This Court has remanded matter for limited purpose to adduce evidence of both parties because Industrial Tribunal (Central) has set aside finding on the ground that charge is not established against workman, therefore, opportunity was demanded by petitioner by filing petition and that permission alone was given by this Court while remanding matter back to Industrial Tribunal (Central) by order dated 22-2-2006 in Special Civil Application No. 3628 of 2002 Thereafter, instead of availing such opportunity given by this Court, new issue has been raised which is altogather different by filing application Exh.48 raising preliminary objection that the order of Reference itself is bad and illegal because appropriate Government and not Central Government. According to my view, this is nothing but legal harassment made by petitioner to respondent-workman. Once, order of Reference is made as per contention of petitioner itself that appropriate Government is Central Government and not State Government and when petitioner has surrendered to jurisdiction of Industrial Tribunal (Central), then, subsequently it is not open for petitioner to raise such contention about legality and validity of order of Reference and such contention is barred by the principles of estoppel and acquiescence, and therefore, petitioner establishment cannot raise such contention against order of Reference which has been made after considering contention of petitioner that appropriate Government is not the State Government but Central Government in respect of the petitioner. No contention against order of Reference has also not been raised by petitioner in petition filed before this Court challenging award of reinstatement of respondent with 60 percent back wages for interim period. Therefore also, principles of acquiescence and estoppel are applicable and petitioner is estopped from raising such contention. Principles of estoppel and acquiescence are coming in the way of petitioner in challenging order of Reference also after remanding matter back to Industrial Tribunal (Central) by this Court for limited purpose to provide opportunity to petitioner which opportunity has not been availed by petitioner intentionally and altogather new contention has been raised by petitioner by filing application Exh. 48, and therefore, according to my opinion, such challenge itself is not permitted in law to the petitioner, and therefore, Industrial Tribunal (Central) has rightly decided matter which would not require any interference of this Court in exercise of powers under Article 227 of the Constitution of India.
27. For reasons recorded above, this petition is dismissed. It is directed to Industrial Tribunal (Central) to decide Reference (I.T.C.) No. 18/95 (Old Number) and New Number 1618 of 1995 as expeditiously as possible but within three months from date of receiving copy of this order after giving reasonable opportunity to respective parties and let petitioner-Bank cooperate hearing before Industrial Tribunal (Central) without creating further legal hurdle against respondent-workman.
