Patel Hemant Mulchandbhai vs Bank Of Baroda
2024 Latest Caselaw 1552 Guj

Gujarat High Court

Patel Hemant Mulchandbhai vs Bank Of Baroda on 20 February, 2024

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     C/SCA/7344/2015                             JUDGMENT DATED: 20/02/2024

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             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 7344 of 2015


FOR APPROVAL AND SIGNATURE:


HONOURABLE MRS. JUSTICE MAUNA M. BHATT

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1     Whether Reporters of Local Papers may be allowed to
      see the judgment ?

2     To be referred to the Reporter or not ?

3     Whether their Lordships wish to see the fair copy of
      the judgment ?

4     Whether this case involves a substantial question of
      law as to the interpretation of the Constitution of
      India or any order made thereunder ?

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                       PATEL HEMANT MULCHANDBHAI
                                  Versus
                          BANK OF BARODA & ORS.
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Appearance:
MR YOGESH G KANADE(3114) for the Petitioner(s) No. 1
MR KV GADHIA(319) for the Respondent(s) No. 2
NOTICE SERVED for the Respondent(s) No. 1,3
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     CORAM:HONOURABLE MRS. JUSTICE MAUNA M. BHATT

                             Date : 20/02/2024

                             ORAL JUDGMENT

1. This petition is filed seeking following reliefs:

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"18.a. The Hon'ble Court be pleased to issue an ander, writ or direction in nature of mandamus or any other appropriate writ, order or direction, declaring the impugned decision of the respondent Bank not to extend the benefits of the settlement to the petitioner at par with junior to the petitioner and to deprive him of status of benefits available to the permanent employees amounts to unfair labour practice and direct the respondents to absorb the petitioner as per the settlement at annexure A and grant all consequential benefit to the petitioner from retrospective date.

b. Be pleased to declare that the respondents have illegally denied absorption of the petitioner as a peon and deny the petitioner of the minimum scale of pay with permissible allowances payable to class-IV employees of the respondent, and the said action of the respondents is unjust arbitrary illegal and violative of Article 14 and 16 of the Constitution of India and will be pleased to direct the respondents to extend all the benefits of the settlement at annexure A to the petitioner with retrospective date and pay arrears of amount with 12% interest.

c. Pending admission and final disposal of the petitioner be pleased to direct the respondents to absorb the petitioner as per the terms of settlement.

d. Pending admission and final disposal of the petition be pleased to direct the respondents to grant minimum scale of pay with permissible allowances as paid by the respondent bank to

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Class-IV employees working as peon with the respondent - Bank.

e. Grant any other and further relief this Hon'ble Court may deems fit and proper in the interest of justice."

2. It is case of the petitioner that the petitioner was working as a peon with the respondent - Bank and discharging his duties diligently. He being the permanent employee of the respondent - Bank, he would be entitled for benefits offered from tripartite settlement took place under the provisions of Section 12(3) of the Industrial Disputes Act, 1947 ("the Act"

for short) in Conciliation Case No.7(1)/2008.

3. Heard Mr. Yogesh Kanade, learned advocate for the petitioner and Mr. K.V.Gadhia, learned advocate for the respondent - Bank.

4. Mr. Kanade, learned advocate for the petitioner submitted that as per the settlement dated 18.03.2008 under Section 12(3) of the Act in Conciliation Case No.7(1)/2008, the petitioner is entitled for benefit of the said settlement particularly, Phase-III wherein it is referred "Casual/temporary peons/Sweepers who have worked for 240 days or more in consecutive 12 months between 01.03.1996 and 28.07.2007 and are still working will be absorbed in Phase-III during the

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financial year 2009-10." Therefore, he would be entitled for the said benefit. He, therefore, submitted that direction may be issued to the Bank to grant the benefit as referred in the settlement dated 18.03.2008 to the petitioner.

5. On the other hand, Mr. Gadhia, learned advocate for the respondent - Bank invited the attention of this Court to the settlement under Section 12(3) of the Act dated 18.03.2008 and submitted that Phase-III of the terms of settlement refers to absorption of peon who have worked for 240 days or more in consecutive 12 months between 01.03.1996 and 28.07.2007 during financial year 2009-10. In this case, whether the petitioner has completed 240 days or more in a consecutive 12 months as referred in Phase-III has not been adjudicated and, therefore, direct petition preferred seeking benefit would not be maintainable.

5.1. Referring to one of the clause of the said settlement, he submitted that implementation report shall have to be filed within a period of 30 days and, therefore, whether the settlement dated 18.03.2008 could be applicable is also to be adjudicated. Learned advocate further submitted that paragraph 4 of clause (d) reads as under:

"It is clearly understood that this settlement will

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not be applicable to the persons engaged on casual/temporary basis after 28.07.2007 or who has not completed 240 days in a period of consecutive 12 months preceding 28.07.2007. Also, the Unions will not claim or file cases in respect of casual/temporary persons who are not working / engaged at present and/or not absorbed under clause 2 above of this settlement."

Therefore, also the present petitioner is not entitled for seeking the benefits of the said settlement.

5.2. Learned advocate submitted that in the order dated 13.10.2016, it is recorded that this petition is to be heard with Special Civil Application No.3507 of 2015. Special Civil Application No.3507 of 2015 has been withdrawn by the petitioner to pursue available remedy to resolve the disputed question of facts.

6. Considered the submissions, particularly, the settlement dated 18.03.2008 Section 12(3) of the Act. This Court is of the opinion that direct benefit as sought by the petitioner cannot be extended in a writ petition filed under Section 226 of the Constitution of India particularly, when no adjudication has been made in relation to completion of 240 days and other conditions which have been referred in Phase - III.

6.1. Further in the decision of the Hon'ble Supreme Court in

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the case of Karnataka Power Corporation Limited vs. K.Thangappan reported in 2006(4) SCC 322 in paragraphs 7 to 10 it is held as under:

"7. It would be appropriate to note certain decisions of this Court in which this aspect has been dealt with in relation with Article 32 of the Constitution. It is apparent that what has been stated as regards that Article would apply, a fortiori, to Article 226. It was observed in R.N. Bose v. Union of India (AIR 1970 SC 470) that no relief can be given to the petitioner who without any reasonable explanation approaches this Court under Article 32 after inordinate delay.

8. It was stated that though Article 32 is itself a guaranteed right, it does not follow from this that it was the intention of the Constitution makers that this Court should disregard all principles and grant relief in petitions filed after inordinate delay. It was stated in State of M.P. v. Nandlal (AIR 1987 SC 251), that the High Court in exercise of its discretion does not ordinarily assist the tardy and the indolent or the acquiescent and the lethargic. If there is inordinate delay on the part of the petitioner and such delay is not satisfactorily explained, the High Court may decline to intervene and grant relief in exercise of its writ jurisdiction. It was stated that this rule is premised on a number of factors. The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring, in its train new injustices, and if writ jurisdiction is exercised after unreasonable delay, it may have the effect of inflicting not only hardship and

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inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.

9. It has been pointed out by this Court in a number of cases that representations would not be adequate explanation to take care of delay. This was first stated in K.V. Raja Lakshmiah v. State of Mysore (AIR 1967 SC 973). This was re- iterated in R.N. Bose's case (supra) by stating that there is a limit to the time which can be considered reasonable for making representations and if the Government had turned down one representation the making of another representation on similar lines will not explain the delay. In State of Orissa v. P. Samantaraj (AIR 1976 SC 1617) making of repeated representations was not regarded as satisfactory explanation of the delay. In that case the petition had been dismissed for delay alone.

10. Additionally, whether Clause (4) of the Settlement was applicable to respondent No.1- workman could not have been adjudicated in a writ petition. In fact, the High Court has not even given any finding in that regard. As has been observed by this Court in ONGC Ltd. and Anr. v. Shyamal Chandra Bhowmik (2006 (1) SCC 337) in cases of this nature a writ petition is not the proper remedy."

7. In view of above, the petition is rejected. This Court has

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not gone into the merits of the matter and if the petitioner chooses to pursue the suitable remedy to resolve the disputed question of fact involved in the present petition, it is open for the appropriate forum to decide in accordance with law.

8. Rule discharged.

(MAUNA M. BHATT,J) NAIR SMITA V.