Sri Manish Kumar Pandey v. Union of India and Others

FACTS OF THE CASE

#2. The brief facts leading to the filing of this writ petition are as follows: - 3 a. The petitioner was appointed as a clerk-cum-accounts clearance staff at the Bank of India, Garden Reach Branch, Kolkata, on 15th July, 1994. He was later transferred on 10th July, 2003 to the Kolkata Municipal Corporation Office of Bank of India. b. While in service, the petitioner was alleged to have committed misconduct by failing to deposit certain amounts in customers’ savings accounts within the stipulated time. On this allegation, the Bank issued a charge-sheet and conducted a departmental enquiry. Upon conclusion of the enquiry, the disciplinary authority imposed the punishment of compulsory retirement/removal from service under Clause 6(c) of the Memorandum of Settlement dated 10th April, 2002, by an order dated 26th March, 2004. c. Aggrieved by the said order, the petitioner preferred an appeal before the Appellate Authority on 30th April, 2004 and made submissions on 26th May, 2004. However, the Appellate Authority, by an order dated 12th July, 2004, upheld the punishment imposed by the disciplinary authority. d. Following the appellate order, the petitioner became unemployed and claimed to have suffered extreme financial hardship. After a considerable lapse of time, he submitted a representation dated 10th November, 2008 before the Chairman-cum-Managing Director, 4 Bank of India, Head Office, Bandra Kurla Complex, Mumbai challenging the Appellate Authority’s order. As no response was received, the petitioner approached this Hon’ble High Court by filing a writ petition being W.P. No. 7589 (W) of 2011. The said writ petition was dismissed by the Hon’ble High Court on 15th May,

#2018. e. Subsequently, the petitioner filed an application before the Central Government Industrial Tribunal under Section 2A (2) of the Industrial Disputes Act, 1947, in the year 2019. However, since the said provision had already been repealed in 2016, the application became infructuous. The petitioner also filed a review application dated 9th July, 2018 against the Appellate Authority’s order, but the same yielded no result. f. Thereafter, the petitioner raised an industrial dispute by submitting a representation dated 11th December, 2017 before the Deputy Chief Labour Commissioner, Government of India, 5th Floor, 236, A.J.C. Bose Road, Kolkata – 700 020 alleging unlawful compulsory retirement. Against the said application in connection with the review of Appellate Authority’s order, the Deputy Zonal Manager, Bank of India replied by his letter dated 13.07.2018 stating that there is no provision of bi-partite settlement for the 5 workman staff for review of the order passed by the Disciplinary Authority/Appellate Authority. g. During conciliation proceedings, the Assistant Labour Commissioner issued a failure report dated 18th March, 2019 under Section 12(4) of the Industrial Disputes Act, 1947, acknowledging the existence of a dispute between the employer and employee. h. Despite the failure report, the Ministry of Labour and Employment, Government of India, by order dated 28th June, 2019, refused to make a reference for adjudication. The refusal was primarily based on the ground of inordinate delay of about 13 years from the date of termination, relying on the Hon’ble Supreme Court judgment in Nedungadi Bank Ltd. v. K.P. Madhavankutty1. i. The petitioner’s review application against the refusal order was also rejected by the Ministry on 9th March, 2022. j. Being aggrieved by the refusal of the appropriate Government to refer the industrial dispute for adjudication, the petitioner has filed the present writ petition challenging the order dated 28th June, 2019, contending therein that the refusal is illegal, arbitrary and beyond the administrative jurisdiction of the Government. 1 AIR 2000 SC 839 6 SUBMISSIONS ON BEHALF OF THE PETITIONER:

#3. Learned counsel appearing on behalf of the petitioner submitted that the appropriate authority did not refer the industrial disputes to the appropriate forum, even though the Asst. Labour Commissioner issued a failure report dated March 18, 2019, under section 12(4) of the Industrial Disputes Act, 1947, acknowledging the existence of a dispute between the employer and the employees.

#4. It was further submitted that, being the administrative power, the appropriate government cannot either decide the merits of the case or refuse to refer the disputes before the appropriate forum for adjudication on the ground of delay. The appropriate government ought to have referred the dispute before the appropriate forum for adjudication, even after exhaustion of all remedies by the writ petitioner, since the dispute, between the employer and employees, is purely industrial in nature, and the same must be decided before the appropriate forum in accordance with law. Such an opportunity did not avail by the writ petitioner to ventilate his grievances, and as such, the writ petitioner preferred this writ petition praying for relief as aforesaid.

#5. It was finally submitted that the appropriate government was not justified in declining to refer an industrial dispute, arising out of the 7 termination of the petitioner, for adjudication by the Industrial Tribunal. If the grounds or reasons, based on which the government declined to refer, were irrelevant, extraneous or not germane to the determination, the party would be entitled for writ in the nature of mandamus. As such, the writ petitioner's prayer is to refer the dispute to the appropriate forum for adjudication on its merits.

#6. Learned counsel appearing on behalf of the petitioner has placed reliance on the following judgments to support her contentions as aforesaid: - i. Ram Avtar Sharma & Ors. Vs. State of Haryana & Ors.2; ii. Telco Convoy Drivers Mazdoor Sangh and Ors. Vs. State of Bihar and Ors.3; iii. Sapan Kumar Pandit Vs. U.P. State Electricity Board and Ors.4. SUBMISSIONS ON BEHALF OF THE RESPONDENTS:

#7. Learned counsel appearing on behalf of the respondent nos. 3 and 4/Bank of India submitted that the petitioner was awarded the punishment of compulsory retirement from his service with superannuation when needed as applicable in terms of clause 6 (c) of