Rajendra Singh vs State Bank Of India
2017 Latest Caselaw 2217 Del

$~2
*IN THE HIGH COURT OF DELHI AT NEW DELHI
+                                    LPA 716/2015
%                                    Date of decision : 4th May, 2017
       RAJENDRA SINGH                                 ..... Appellant
                    Through:               Mr. Ravindra S. Garia, Adv.

                            versus

       STATE BANK OF INDIA                             ..... Respondent
                    Through:               Ms. Kittu Bajaj, Adv.

CORAM:
HON'BLE THE ACTING CHIEF JUSTICE
HON'BLE MS. JUSTICE ANU MALHOTRA
                        JUDGMENT (ORAL)

GITA MITTAL, ACTING CHIEF JUSTICE

1. The petitioner has assailed the decision dated 27 th April, 2015

passed by the learned Single Judge dismissing W.P.(C) No.

5168/2013.

2. The factual narration giving rise to the challenge is within a

narrow compass and to the extent necessary, we note the same

hereunder.

3. It appears that the appellant was the employee of the State Bank

of India. On account of certain allegations against him, a decision

was taken to conduct disciplinary proceedings against the appellant.

On 8th December, 2006, he was suspended from service.

4. Memo of charges were issued to the appellant on 12th

November, 2007 and 4th June, 2008 respectively for alleged

misappropriation of funds from customers account. On 1st

September, 2008, a decision was taken to conduct disciplinary

proceedings against the appellant. The enquiry culminated in finding

the appellant culpable for commission of the offences with which the

appellant was charged. Finally on 24th August, 2010, the penalty of

removal from service with superannuation benefits was imposed upon

the appellant. It was additionally directed that the period of

suspension would be treated as period not spent on duty.

5. Aggrieved by the order of the disciplinary authority, on 23 rd

September, 2010, the appellant assailed the same by way of an appeal

before the Appellate Authority. This appeal, however, also failed and

by an order dated 16th November, 2010, the order of the disciplinary

authority was upheld.

6. On 27th July, 2011, the appellant raised a dispute with regard to

the orders against him by way of Industrial Dispute No. 52/2011. The

appellant was invoking the jurisdiction of the Industrial Tribunal

under Section 10(4A) of the Industrial Disputes Act, 1947 ('ID Act'

hereafter). However, the Industrial Tribunal passed an order dated

23rd April, 2013 holding that the appellant had not complied with the

requirement of sub-section 2 of Section 2A of the ID Act, 1947 and,

therefore, the Tribunal could not invoke its jurisdiction to adjudicate

upon the dispute.

7. The order of the Industrial Tribunal was assailed by the

appellant before the learned Single Judge by way of W.P.(C)

No.5168/2013 which challenge was repelled by the impugned order

dated 27th April, 2015.

8. The learned Single Judge has also held that Section 2A inserted

by the Parliament, was a Central Amendment Act which, therefore,

had an overriding effect over Section 10(4A). It was also held that

Section 10 contained a non-obstante clause notwithstanding anything

contained in Section 10, which gave the statutory provision of Section

2A, an overriding effect over the other statutory provisions.

9. This order has been challenged before us primarily on a legal

submission. The appellant has complained that as a result of the

interpretation accorded to the statutory provision, the appellant has

been denied the right of legal redressal as well as judicial review and

that the impugned order of the Industrial Tribunal dated 23rd April,

2013 and the judgment of the learned Single Judge dated 27 th April,

2015 are erroneous for the reason that they have completely

overlooked the constitutional mandate contained in Article 239AA.

We have heard learned counsels for the parties on this short

question of law.

10. In order to appreciate the intendment and import of statutory

provisions, it is essential to note the statutory amendments which have

been brought on record.

11. Section 10(4A) was notified by a notification no.

F.No.14(5)/LA-2003/1156 dated 25th July, 2003 and took effect from

22nd August, 2003 upon effect of the aforesaid notification. This

notification shows that the legislation was proposed by the legislative

assembly of the National Capital Territory of Delhi and was placed

for consideration before the President of India. The notification

giving effect to the statutory amendment clearly states that the

Amendment Act proposed by the Legislative Assembly of the

National Capital Territory of Delhi "received the assent of the

President of India on 13th July, 2003". As a result of this amendment

(which was called the Industrial Disputes (Delhi Amendment) Act,

2003), the following sub-section came to be inserted into the

Industrial Disputes Act, 1947:

"10. xxx

(4A) Notwithstanding anything contained in section 9C and in the case of a dispute falling the scope of Section 2A, the individual workman concerned may, within twelve months from the date of communication of the order of discharge, dismissal, retrenchment or termination of the date of commencement of the Industrial Disputes(Delhi Amendment) Act, 2003, whichever, is later, apply in the prescribed manner, to the Labour Court, tribunal, as the case may be, for adjudication of the dispute and the Labour Court or Tribunal, as the case may be dispose of such application in the same manner as a dispute referred under sub-section(1)."

12. So far as the power of the Legislative Assembly of the

Government of NCT of Delhi to legislate is concerned, it is essential

to advert to Article 239AA of the Constitution of India which was

inserted by the Constitution (69th Amendment) Act, 1991. This

constitutional provision makes special provision with respect to Delhi.

For expediency, we extract clauses 2(c) and 3(c) of Article 239AA

which read thus :

"Article 239AA

xxx xxx xxx 2 (c) The provisions of articles 324 to 327 and 329 shall apply in relation to the National Capital Territory, the Legislative Assembly of the National Capital Territory and the members thereof as they apply, in relation to a State, the Legislative Assembly of a State and the members thereof respectively and any reference in articles 326 and 329 to "appropriate Legislature" shall be deemed to be a reference to Parliament.

xxx 3(c) If any provision of a law made by the Legislative Assembly with respect to any matter is repugnant to any provision of a law made by Parliament with respect to that matter, whether passed before or after the law made by the Legislative Assembly, or of an earlier law, other than a law made by the Legislative Assembly, then, in either case, the law made by Parliament, or , as

the case may be, such earlier law, shall prevail and the law made by the Legislative Assembly shall, to the extent of the repugnancy, be void;

Provided that if any such law made by the Legislative Assembly has been reserved for the consideration of the President and has received his assent such law shall prevail in National Capital Territory ;

Provided further that nothing in this sub-clause shall prevent Parliament from enacting at any time any law with respect to the same matter including a law adding to, amending, varying or repealing the law so made by the Legislative Assembly."

(Emphasis by us)

13. Given the grounds on which the order dated 23rd April, 2013

was made by the Industrial Tribunal and stands upheld by the

impugned order dated 27th April, 2015, it is also essential to note the

subsequent amendment which was effected to the Industrial Disputes

Act, 1947. In the year 2010, the Parliament of India by virtue of Act

24 of 2010, brought Section 2A on to the statute book with effect from

15th September, 2010 which provision reads as follows :

"2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.- [(1)]Where

any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute.]

[(2) Notwithstanding anything contained in section 10, any such workman as is specified in sub- section (1) may, make an application direct to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of three months from the date he has made the application to the Conciliation Officer of the appropriate Government for conciliation of the dispute, and in receipt of such application the Labour Court or Tribunal shall have powers and jurisdiction to adjudicate upon the dispute, as if it were a dispute referred to it by the appropriate Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication as they apply in relation to an industrial dispute referred to it by the appropriate Government.]

[(3) The application referred to in sub-section (2) shall be made to the Labour Court or Tribunal before the expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).]"

(Emphasis supplied)

14. Reading of Section 2A would show that this statutory

amendment was effected on 15th September, 2010 after Section

10(4A) was brought on the statute book on 22nd August, 2003.

Therefore, enactment so far as the date of the two legislations coming

into force is concerned, Section 2A is the later.

15. It is noteworthy that Section 10A has been provided in Chapter

III of the Industrial Disputes Act, 1947 under the heading "Reference

of dispute to Boards, Courts or Tribunals". Section 2A features in

Chapter I.

16. We also find that Section 2 contains a non-obstante clause and

stipulates that the provisions of Section 2A would take effect

"notwithstanding anything contained in Section 10".

17. However, the spirit, intendment and purpose of the legislation

cannot rest on consideration of the non-obstante clause alone. We

find that Section 10(4A) also contains a non-obstante clause.

18. Section 10(4A) enables an individual workman seeking

reference of disputes to "boards, court or tribunals" to approach the

Labour Court or the Tribunal for adjudication of the dispute, within 12

months from the date of communication to him inter alia of an order

of discharge, dismissal, retrenchment or termination. Thus, the

legislative intent of Section 10(4A) appears to enable a workman to

directly approach the Labour Court or Tribunal, without having

recourse to the machinery prescribed in other provisions of the

Industrial Disputes Act, 1947.

19. Section 10(4A) clearly does not deal with the substantive rights

and liabilities of the parties but only enables invocation of a remedy

upon the happening of the event of discharge, dismissal, retrenchment

or termination of service. The opportunity to do so is also

circumscribed by the period of limitation in as much as the

Legislature has made available this option to the workman as

exercisable only within 12 months from the date of communication of

the order in question.

20. So far as Section 2A is concerned, sub-section (1) thereof

contains a deeming provision so far as disputes connected with or

arising out of discharge, dismissal, retrenchment or termination of

service of a workman. It deems such dispute of even an individual

workman to be treated as an industrial dispute, notwithstanding that

no other workman nor any union of a workman is a party to the

dispute.

21. Sub-section 2 of Section 2A which contains the non-obstante

clause vis-a-vis Section 10 of the enactment, enables such workman

(i.e. one who stands discharged/dismissed/retrenched/ or whose

services have been terminated) to make an application directly to the

Labour Court or Tribunal for adjudication of the dispute referred to

therein. Sub-section 2 prescribes that such workman would first have

to make an application to the Conciliation Officer of the appropriate

government for conciliation of the dispute and enables the workman

to, on expiry of forty five days from the date of making such

application, to make an application directly to the Labour Court or

Tribunal for adjudication of the dispute. As a result, the workman

stands exempted from awaiting the outcome of the conciliation and a

reference being made by the conciliation officer in accordance with

the other provisions of Section 10 of the Industrial Disputes Act,

1947.

22. We find that the Parliament has provided no exception to the

enabling provision contained in Section 10(4A) of the enactment.

23. It has been argued that the impugned judgment dated 27 th April,

2015 has treated Section 2A as having an overriding effect over

Section 10(4A) of the Industrial Disputes Act observing that there was

repugnancy between the two provisions. Reference stands made to

Article 254 of the Constitution of India which is concerned with

inconsistency between laws made by the Parliament and laws made by

the legislators of States.

For the purposes of considering the legislative competence of

the legislative assembly of the Govt. of NCT of Delhi and the

contours of this power, it is necessary also to advert to the provisions

contained in Article 239AA of the Constitution of India extracted

above.

24. We find that the Govt. of NCT of Delhi stands conferred with a

special status under the Constitutional Scheme. The Parliament has

enacted Article 239AA, special provision conferring special status

with respect to Delhi. In clause 3C of Article 239AA extracted above,

the Parliament has also anticipated repugnancy of a legislative

provision made by the Legislative Assembly of the Government of

NCT of Delhi with a provision of law made by the Parliament with

respect to that matter. The first proviso takes into consideration such

law enacted by the Legislative Assembly by the Government of NCT

of Delhi which stands reserved for consideration of the President and

has received his assent. This proviso has specifically stated that the

law made by the Legislative Assembly which has received the assent

of the President, shall prevail in the National Capital Territory of

Delhi.

25. We have noted above that so far as Section 10(4A) of the

Industrial Disputes Act is concerned, it is a legislative amendment

which had been proposed by the Legislative Assembly of the

Government of NCT of Delhi which was reserved for consideration of

the President and stands enacted only after the assent of the President

was received on 13th July, 2003. In view of the position declared by

the first proviso to clause 3C of Article 239AA, so far as Section

10(4A) is concerned, the same would prevail in the National Capital

Territory of Delhi.

26. We also note that, so far as Section 10(4A) of the Industrial

Disputes Act, 1947 and Section 2A of the enactment are concerned,

they provide two different remedies to a workman who stands

discharged/dismissed/retrenched for redressal of his grievance.

Section 10(4A) enables a workman to directly approach the Labour

Court or the Industrial Tribunal within a period of one year from the

communication of the order of discharge/dismissal/retrenchment

without taking recourse to the procedure prescribed under Section 10.

On the other hand, by virtue of Section 2A, a dispute/difference

between a workman and his employer connected with or arising out of

discharge dismissal retrenchment or termination of service is deemed

to be an industrial dispute. Furthermore, the workman is enabled to

approach the Conciliation Officer within a period of three months

from the occurrence and after expiry of three months from the date of

so approaching him, the workman can make a further application

directly to the Labour Court or Tribunal for adjudication of the

dispute. That is to say, under Section 2A, the second option available

to the workman does not have to await the references by the

Conciliation Officer.

27. In view of the above discussion, we are unable to agree with the

observations in the impugned order that there was a repugnancy

between the two statutory provisions.

28. Even if it could be held that there was a repugnancy between

them, by virtue of the operation of the proviso to Article 239AA(3)(c),

Section 10(4A) being a law made by the Legislative Assembly of the

Government of NCT of Delhi which was reserved for consideration of

the President and having received his assent on 13th July, 2003 and

stands enacted thereafter, would prevail over the central legislation.

29. Thus, the claim made by the appellant, which came to be

registered as ID No. 52/2011, could not have been rejected on the

ground that the appellant has not complied with the provisions of sub-

section 2 of Section 2A of the Industrial Disputes Act. On the other

hand, the Industrial Tribunal was bound to have considered the same

and decided it on its merits.

30. In view of the above, it is directed as follows :

(i) The impugned judgment dated 27th April, 2015 of the learned

Single Judge in W.P.(C) No. 5168/2013 and the order dated 23 rd

April, 2013 of the Industrial Tribunal rejecting ID No. 52/2011 are

hereby set aside and quashed.

(ii) It is directed that ID No. 52/2011 shall be taken up for

consideration by the Industrial Tribunal and decided in accordance

with law.

(iii) The parties shall appear before the Industrial Tribunal seized of

ID No. 52/2011 on 30th May, 2017 for appropriate directions

regarding further proceedings.

This appeal is allowed in the above terms.

Dasti.

ACTING CHIEF JUSTICE

ANU MALHOTRA, J MAY 04, 2017/kr