L.Bhojan v. District CentralCo-operative Bank Limited

IN THE HIGH COURT OF JUDICATURE AT MADRASDATE: 16-09-2008CORAMTHE HONOURABLE MR.JUSTICE M.JAICHANDRENWrit Petition No.5802 of 2001L.Bhojan.. Petitioner. Versus1.The Managing Director, the Nilgiris District CentralCo-operative Bank Limited,(N.D.C.C.B.L.)Cherring Cross, Udhagamanadalam, The Nilgiris-643001.

The Registrar of Co-operative Societies, No.170, Periyar E.V.R.Road, Kilpauk, Chennai-600010... Respondents. Prayer: This petition has been filed under Article 226 of the Constitution of India seeking for a writ of Mandamus, to direct the respondents herein in particular the first respondent herein to implement and give effect to the upward revision of the scale of pay of the petitioner in accordance with the terms of the settlement, dated21.2.97, entered into between the first respondent herein and itsEmployees Association, under Section 12(3) of the Industrial DisputesAct, 1947, (Act XIV of 1947) with effect from 1.7.1994 and consequently, pay to the petitioner the monetary benefits arrears of salary that is due to him by virtue of such upward revision of salary in full including the ex-gratia payment for the years 1995-96 and 1996-97 together with interest @ 24 % per annum. For Petitioner : Mr.T.R.SathiyamohanFor Respondents : Mr.M.Sriram (R1) Mr.T.Seenivasan Additional Government Pleader (R2)

O R D E RHeard the learned counsel appearing for the petitioner and the learned counsel appearing for the respondents. 2. This writ petition has been filed praying for a writ of mandamusto direct the first and second respondents to implement the wage revision as per the settlement, dated 21.2.1997, entered into between https://hcservices.ecourts.gov.in/hcservices/ the management of the first respondent Bank and the employees association, under Section 12(3) of the Industrial Disputes Act, 1947.

It has been stated that the petitioner had joined the services of the first respondent Bank in the year 1967 as a Group Clerk. Later, he was promoted to the various posts and at the time of the filing of the present writ petition, he was holding the post of Assistant Manager. While so, the petitioner had gone on leave and thereafter, the leave was extended on medical grounds. However, a charge memo, dated 16.7.96 and asuspension order, dated 12.7.96, were served on the petitioner by the Manager (Personnel), on 18.7.96. While the petitioner was on medical leave. The allegations levelled against the petitioner in the charge memo, dated 16.7.96, were false, frivolous and without any basis. Thepetitioner had been charged for misappropriating the funds of the first respondent Bank, while he was working as a Senior Assistant at the HeadOffice of the first respondent bank at Udhagamandalam. In spite of adetailed explanation submitted by the petitioner, a domestic enquiry had been conducted against him. The said enquiry was not conducted in a fair and proper manner and it had been conducted without following the principles of natural justice. Based on the findings of the enquiry, the petitioner was dismissed from service by an order, dated 24.4.97.Challenging the said order, the petitioner had preferred an appeal before the Deputy Commissioner of Labour, Coimbatore, the appellate authority, under Section 40(1) of the Tamilnadu Shops and EstablishmentsAct, 1947. The said appeal had been numbered as TNSEA No.4 of 1997 and the said appeal is still pending on the file of the appellate authority.

It has been further stated that prior to the order of dismissal passed against the petitioner, the first respondent Bank had entered into a settlement, on 21.2.1997, revising the scales of pay of the employees of the Bank. The said settlement had been entered into following the expiry of the earlier settlement and it was in accordance with the various Government Orders and the circulars and the recommendations of the streamlining committee, appointed by the Government of Tamilnadu. As per the said settlement all the employees of the first respondent Bank, were on the rolls of employment, as on30.6.94, and thereafter, they were eligible for the pay revision. Accordingly, the petitioner is eligible for the revision of pay scales, as provided in the settlement, dated 21.2.1997. Even though the petitioner had been dismissed from service by an order, dated 24.4.97,he would be eligible for the revised scales of pay, in accordance with the concluded settlement, dated 21.2.1997, as the wage revision was made applicable to all the employees of the first respondent Bank, who were on the rolls of employment, as on 30.6.1994 and thereafter. In such circumstances, the petitioner has preferred the present writ petition, under Article 226 of the Constitution of India.

Even though no counter affidavit has been filed on behalf of the respondents, the learned counsels appearing on behalf of the respondents had submitted that the writ petition filed by the petitioner is not maintainable, since the prayer therein is mainly against the first https://hcservices.ecourts.gov.in/hcservices/ respondent bank, which is not an authority or body coming under the definition of `State' under Article 12 of the Constitution of India. Further, the petitioner has prayed for the implementation of asettlement, dated 21.2.1997, concluded under Section 12(3) of the Industrial Disputes Act, 1947. A writ of Mandamus cannot be issued to implement such a settlement, as it is a contract between the management of the first respondent Bank and its employees. Further, the petitioner had been dismissed from service by an order, dated 24.4.1997. In such circumstances, the writ petition is liable to be dismissed.

In view of the averments made on behalf of the petitioner, aswell as the respondents and on a perusal of the records available before this Court, it is clear that the prayer sought for by the petitioner in the present writ petition cannot be granted. The petitioner has not been in a position to show as to how he is eligible for the revised scales of pay, even though he had been dismissed from service, by an order, dated24.4.97. A writ of mandamus, under Article 226 of the Constitution of India, cannot be issued to implement the settlement, dated 21.2.97,concluded between the management of the first respondent Bank and its employees, under Section 12(3) of the Industrial Disputes Act, 1947. In such view of the matter, the writ petition is liable to be dismissed. Accordingly, it is dismissed. No costs. Sd/Asst. Registrar/true copy/Sub Asst. RegistrarcshTo1.The Managing Director, the Nilgiris District CentralCo-operative Bank Limited, (N.D.C.C.B.L.)Cherring Cross, Udhagamanadalam, The Nilgiris-643001.2.The Registrar of Co-operative Societies, No.170, Periyar E.V.R.Road, Kilpauk, Chennai-600010.1 cc To Mr.M.Sriram, Advocate, SR.53166.Writ Petition No.5802 of 2001 SSN(CO)RVL 17.10.2008