State Bank of India & Ors. Vs. State Bank of India Canteen Employees’ Union & Ors.
EmailAppeal: Civil Appeal Nos. 552- 553 of 1994
(From the Judgment and order dated 2.9.93 of the Calcutta High Court in A.No. Nil of 1993 and Matter No. Nil of 1993)
(From the Judgment and order dated 2.9.93 of the Calcutta High Court in A.No. Nil of 1993 and Matter No. Nil of 1993)
Petitioner: State Bank of India & Ors.
Respondent: State Bank of India Canteen Employees’ Union & Ors.
Apeal: Civil Appeal Nos. 552- 553 of 1994
(From the Judgment and order dated 2.9.93 of the Calcutta High Court in A.No. Nil of 1993 and Matter No. Nil of 1993)
(From the Judgment and order dated 2.9.93 of the Calcutta High Court in A.No. Nil of 1993 and Matter No. Nil of 1993)
Judges: MR.K.VENKATASWAMI & MR. A.P. MISRA
Date of Judgment: May 05, 1998
Appearances:
Ms. Shanti Bhushan, Senior Advocate., Mr. A.V.Rangam, Mr. V.R.Gopal Ratnam, Mr. A.Ranganadhan, Mr. Buddy A. Ranganadha, Advocates with him for the appellants.
Mr. Anindya Mitra, Senior Advocate., Mr. Joydeep Kar, Mr. Rana Mukherjee, Ms. Sumita Mukherjee and Mr. Goodwill Indeevar, Advo-cates with him for the Respondents.
Head Note:
PRACTICE AND PROCEDURE
Constitution – Article 226 – Writ of mandamus-Allowed by High Court inspite of the question of facts involved and dispute of Fact, as to whether canteen employees are employees of the Bank, having been referred to Industrial Tribunal- High Court noting that material fact was not accepted by bank ; yet gave findings – Held that appropriate causers would have been either not to permit the employees to move the High Court or in the alternative, to keep the matter pending till the decision of tribunal – Accordingly, directions issued to the Tribunal to render Award with in 6 months, and the mother to be listed thereafter. (Paras 6, 8, 10 & 11)
Constitution – Article 226 – Writ of mandamus-Allowed by High Court inspite of the question of facts involved and dispute of Fact, as to whether canteen employees are employees of the Bank, having been referred to Industrial Tribunal- High Court noting that material fact was not accepted by bank ; yet gave findings – Held that appropriate causers would have been either not to permit the employees to move the High Court or in the alternative, to keep the matter pending till the decision of tribunal – Accordingly, directions issued to the Tribunal to render Award with in 6 months, and the mother to be listed thereafter. (Paras 6, 8, 10 & 11)
Cases Reffered:
1. Employers In Relation To The Management of Reserve Bank of India v. Workmen JT 1996 (3) SC 226,
2. Parimal Chandra Raha & Others v. Life Insurance Corporation of India & Ors.JT 1995 (3) SC 288,
3. Associate Banks Officers’ Association v. State Bank of India & Ors.JT 1997 (8) SC 422 = (1998 (1) SCC 428. In all these cases, the case in
4. M.M.R.Khan & Ors. v. Union of India & Ors. (1990 (Supp) SCC 191)
2. Parimal Chandra Raha & Others v. Life Insurance Corporation of India & Ors.JT 1995 (3) SC 288,
3. Associate Banks Officers’ Association v. State Bank of India & Ors.JT 1997 (8) SC 422 = (1998 (1) SCC 428. In all these cases, the case in
4. M.M.R.Khan & Ors. v. Union of India & Ors. (1990 (Supp) SCC 191)
JUDGEMENT:
ORDER
1. Respondents 1 to 3 herein moved a learned Single judge of the Calcutta High Court for the issue of a writ of mandamus directing the appellants to forthwith absorb the members of the first ~4~ union as employees of the appellant-bank with effect from their respective dates of joining or within such time as the Court may deem fit and proper and for other consequential directions.
2. The learned Single Judge passed the following order :-
“The Court : having heard the learned Counsel for the petitioner and the respondent- State Bank of India it is directed that the matter will come as application 3 months hence. A/O by 6 weeks and Reply by 3 weeks thereafter. Pendency of the petition will not prevent the parties to proceed before the Tribunal in the manner mentioned in the petition. Any step to be taken by the respondent pursuant to the impugned settlement will abide by the result of the writ petition. Liberty to mention for early hearing after filing of affidavit.
All parties to act on a signed copy of the minutes of this order on the usual undertaking.
3. Aggrieved by the above order, respondents 1 to 3 moved the Division Bench of that High Court and the learned Judges of the Division Bench withdrew the case from the learned Single Judge and heard the main case itself along with the appeal filed against the interim order of the learned Single Judge.
4. The learned Judges accepted the case of the first respondent – union and directed the appellants to treat the employees of the canteens of all the Branches as employees of the bank. Aggrieved by that, the present appeals are filed by special leave.
5. We have heard extensively Mr. Shanti Bhushan, learned senior counsel for the appellants, and Mr. Anindya Mitra, learned senior counsel for the contesting respondents.
6. We have noticed that at the instance of the first respond-ent-union, on an identical issue, a dispute was raised espousing the cause of its members (workmen) and on failure of settlement the matter was referred to the Central Government Industrial Tribunal. While the matter was pending, respondents 1 to 3 seem to have moved the High Court simultaneously. The appropriate way of disposing of the matter by the High Court would have been to direct the parties to proceed with the case before the Industrial Tribunal and not to permit the union to simultaneously move the High Court. Alternatively the High Court could have kept the matter pending till the Industrial Tribunal decided the issue by giving findings on the disputed questions of fact. The Division Bench itself has noticed that the appellant-bank has not accepted the material facts and still the Division Bench, while exercising jurisdiction under article 226 of the Constitution of India, gave findings on questions of disputed facts.
7. Two important aspects on which the facts seriously disputed were that the canteen employees were not the employees of the bank as there was no relationship of employer and employee and there was no similarity between the canteens in dispute and the canteens run by the bank. The Division Bench proceeded on the assumption that the canteen employees are the employees of the bank and the canteens run by the bank and the canteens now in question are similar in all respects. It appears that as a result of bipartite agreement between the bank and employees federation (after four stages) ultimately the Bank agreed to take over and run the canteens where the Branch is manned by not less than 100 employees. The canteens now in question are the canteens in the branches where the bank employees are less than 100. According to the bank, there are 231 branches in which only 5 employees are there and in 126 branches the staff strength was only between 6 and 10. According to the learned counsel appearing for the bank, the question whether there was necessity to run a canteen in those branches and other similar questions should have been gone into by the High Court and without deciding such factual aspect the High Court has issued the mandamus as prayed for.
8. On the facts, we are of the view that the High Court ought not to have entertained the Writ Petition when the identical issue between the same parties was pending before the Industrial Tribunal and that too at the instance of the writ petitioners before the High Court. We are told that the matter before the Industrial Tribunal is still pending.
9. Strong reliance was placed on the recent judgments of this Court in Employers In Relation To The Management of Reserve Bank of India v. Workmen JT 1996 (3) SC 226, Parimal Chandra Raha & Others v. Life Insurance Corporation of India & Ors.JT 1995 (3) SC 288, Associate Banks Officers’ Association v. State Bank of India & Ors.JT 1997 (8) SC 422 = (1998 (1) SCC 428. In all these cases, the case in M.M.R.Khan & Ors. v. Union of India & Ors. (1990 (Supp) SCC 191) was referred to, elaborately considered and explained to a certain extent. For appreciating and applying the principles laid down by this Court in these recent judgments, it is absolutely necessary to have clear and elaborate findings on facts based on materials.
10. In the circumstances, taking advantage of the pendency of the identical issue in Ref. No. 2/92 before the Central Govern-ment Industrial Tribunal at Calcutta, instead of directing the parties to go before the same Tribunal in this matter as well, to avoid delay and in the interest of both the parties, we direct the Central Government Industrial Tribunal to expedite the hear-ing of Ref. No. 2/92 and render the Award within six months. The parties shall avoid taking adjournments. The party, aggrieved by the award of the Tribunal to be passed pursuant to the direction as given above, will be at liberty to move this Court.
11. These appeals will be listed after the disposal of the Reference by the Central Government Industrial Tribunal as afore-said alongwith the SLP, if any, filed against the Award of the Central Government Industrial Tribunal.
1. Respondents 1 to 3 herein moved a learned Single judge of the Calcutta High Court for the issue of a writ of mandamus directing the appellants to forthwith absorb the members of the first ~4~ union as employees of the appellant-bank with effect from their respective dates of joining or within such time as the Court may deem fit and proper and for other consequential directions.
2. The learned Single Judge passed the following order :-
“The Court : having heard the learned Counsel for the petitioner and the respondent- State Bank of India it is directed that the matter will come as application 3 months hence. A/O by 6 weeks and Reply by 3 weeks thereafter. Pendency of the petition will not prevent the parties to proceed before the Tribunal in the manner mentioned in the petition. Any step to be taken by the respondent pursuant to the impugned settlement will abide by the result of the writ petition. Liberty to mention for early hearing after filing of affidavit.
All parties to act on a signed copy of the minutes of this order on the usual undertaking.
3. Aggrieved by the above order, respondents 1 to 3 moved the Division Bench of that High Court and the learned Judges of the Division Bench withdrew the case from the learned Single Judge and heard the main case itself along with the appeal filed against the interim order of the learned Single Judge.
4. The learned Judges accepted the case of the first respondent – union and directed the appellants to treat the employees of the canteens of all the Branches as employees of the bank. Aggrieved by that, the present appeals are filed by special leave.
5. We have heard extensively Mr. Shanti Bhushan, learned senior counsel for the appellants, and Mr. Anindya Mitra, learned senior counsel for the contesting respondents.
6. We have noticed that at the instance of the first respond-ent-union, on an identical issue, a dispute was raised espousing the cause of its members (workmen) and on failure of settlement the matter was referred to the Central Government Industrial Tribunal. While the matter was pending, respondents 1 to 3 seem to have moved the High Court simultaneously. The appropriate way of disposing of the matter by the High Court would have been to direct the parties to proceed with the case before the Industrial Tribunal and not to permit the union to simultaneously move the High Court. Alternatively the High Court could have kept the matter pending till the Industrial Tribunal decided the issue by giving findings on the disputed questions of fact. The Division Bench itself has noticed that the appellant-bank has not accepted the material facts and still the Division Bench, while exercising jurisdiction under article 226 of the Constitution of India, gave findings on questions of disputed facts.
7. Two important aspects on which the facts seriously disputed were that the canteen employees were not the employees of the bank as there was no relationship of employer and employee and there was no similarity between the canteens in dispute and the canteens run by the bank. The Division Bench proceeded on the assumption that the canteen employees are the employees of the bank and the canteens run by the bank and the canteens now in question are similar in all respects. It appears that as a result of bipartite agreement between the bank and employees federation (after four stages) ultimately the Bank agreed to take over and run the canteens where the Branch is manned by not less than 100 employees. The canteens now in question are the canteens in the branches where the bank employees are less than 100. According to the bank, there are 231 branches in which only 5 employees are there and in 126 branches the staff strength was only between 6 and 10. According to the learned counsel appearing for the bank, the question whether there was necessity to run a canteen in those branches and other similar questions should have been gone into by the High Court and without deciding such factual aspect the High Court has issued the mandamus as prayed for.
8. On the facts, we are of the view that the High Court ought not to have entertained the Writ Petition when the identical issue between the same parties was pending before the Industrial Tribunal and that too at the instance of the writ petitioners before the High Court. We are told that the matter before the Industrial Tribunal is still pending.
9. Strong reliance was placed on the recent judgments of this Court in Employers In Relation To The Management of Reserve Bank of India v. Workmen JT 1996 (3) SC 226, Parimal Chandra Raha & Others v. Life Insurance Corporation of India & Ors.JT 1995 (3) SC 288, Associate Banks Officers’ Association v. State Bank of India & Ors.JT 1997 (8) SC 422 = (1998 (1) SCC 428. In all these cases, the case in M.M.R.Khan & Ors. v. Union of India & Ors. (1990 (Supp) SCC 191) was referred to, elaborately considered and explained to a certain extent. For appreciating and applying the principles laid down by this Court in these recent judgments, it is absolutely necessary to have clear and elaborate findings on facts based on materials.
10. In the circumstances, taking advantage of the pendency of the identical issue in Ref. No. 2/92 before the Central Govern-ment Industrial Tribunal at Calcutta, instead of directing the parties to go before the same Tribunal in this matter as well, to avoid delay and in the interest of both the parties, we direct the Central Government Industrial Tribunal to expedite the hear-ing of Ref. No. 2/92 and render the Award within six months. The parties shall avoid taking adjournments. The party, aggrieved by the award of the Tribunal to be passed pursuant to the direction as given above, will be at liberty to move this Court.
11. These appeals will be listed after the disposal of the Reference by the Central Government Industrial Tribunal as afore-said alongwith the SLP, if any, filed against the Award of the Central Government Industrial Tribunal.
