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Judgment
Rakesh Tiwari, J.—Heard learned Counsel for the parties and perused the record.
The only relief sought by the petitioner in this writ petition is for a writ of mandamus commanding the opposite parties concerned to accord promotion to the petitioner and decide the representation dated 26.3.2003.
It appears that the petitioner had been suspended from service with the direction that he will not be paid salary during suspension period. The petitioner has already retired from service.
In paragraph 23 of the writ petition, the petitioner has stated that he has no alternative, efficacious remedy under any other law except to invoke extraordinary writ jurisdiction of this Court under Article 226 of the Constitution on the ground that he has not committed any misconduct and the order dated 14.5.1997 has been passed arbitrarily and on incorrect facts.
The petitioner was cashier in Bijnore Zila Sahkari Bank Ltd., hereinafter referred to as ''Bank''. He was directed to deposit surplus Rs. 3 crores under PUC Scheme but he had deposited the same in SBI Magnum.
By a special Act, the Industrial Disputes (Banking and Insurance Companies) Act, 1949 provide for adjudication of industrial disputes concerning certain banking and insurance companies.
Section 5 of the said Act provides abatement of proceedings relating to disputes pending before State tribunal and reference of such disputes to Tribunals constituted by the Central Government.
Sub-section (2) of section 5 of the Act provides that the Central Government shall, as soon as may be after the commencement of this Act, by order in writing refer u/s 10 of the said Act every industrial dispute to which the provisions of Sub-section (1) apply to an Industrial Tribunal constituted under the said Act for adjudication.
Section 6 of the said Act is quoted below:
"6. Powers of Central Government to refer disputes in respect of which awards or decisions have been made for re-adjudication.--(1) Where any award or decision has been made in respect of any industrial dispute concerning any banking or insurance company by any Tribunal or other authority constituted or appointed by a State Government, or any officer or authority subordinate to such Government, then the Central Government may, notwithstanding that the said award or decision is in force, by order in writing refer u/s 10 of the said Act the dispute or any of the matters in dispute to an Industrial Tribunal constituted under the said Act for re-adjudication and stay the implementation of the award or decision so made or of any part of such award or decision until the Industrial Tribunal to which the dispute or any of the matters in dispute is referred for re-adjudication has submitted its award or for such further period as the Central Government may consider necessary."
Act No. 54 of the Industrial Disputes (Banking & Insurance Companies) Act, 1949 has been made specially for the purpose of adjudication of the industrial disputes and is a special Act as framed thereunder which provides for enquiry etc. can be involved and the same is a complete code in this regard. However as regards industrial disputes which required adjudication such as question of pay fixation, promotion, rationalization, interpolation of standing orders etc. as provided in the first and second schedule of the Industrial Disputes Act in respect of banks including co-operative banks have to be referred u/s 10 of the Industrial Disputes Act, 1947 in view of Act No. 54 aforesaid legislated in this regard.
In the Full Bench decision of this Court rendered in Chandrama Singh v. Managing Director, U.P. Co-operative Union, Lucknow and others (1991) 1 U.P.L.B.E.C. (2) 898, it has been held that in cases of termination of an industrial employee the remedy lies before the Labour Court which is alternate and efficacious remedy as in such cases findings of fact are required to be recorded on the basis of oral and documentary evidence which may be adduced before the Labour Court.
In my opinion it would not be feasible in writ jurisdiction of High Court under Article 226 of the Constitution to take oral and documentary evidence for adjudication of disputed questions of fact''s on the questions as to whether the petitioner an employee of the bank is at all guilty of the misconduct for which his services have been terminated, and lastly whether the punishment awarded to him is highly disproportionate to the charges levelled against him.
It has been the consistent view of the Hon''ble Supreme Court that wherever an alternate remedy is available it should not be bye-passed; as such the petitioner has to approach this Court after exhausting alternate remedy. Reference in this regard may be made to Hindustan Steel Works Construction Ltd., and another v. Hindustan Steel Works Construction Ltd., Employees Union 2005 (106) FLR 998 (SC) , and U.P. State Spinning Co. Ltd. Vs. R.S. Pandey and Another, wherein it has been held that in such cases the writ petition should not be entertained under Article 226 of the Constitution unless a very strong case for interference is made out.
Sri H.N. Tripathi, Advocate assisting the petitioner has submitted that in the case of Ghaziabad Zila Sahkari Bank Ltd. v. Addl. Labour Commissioner and others 2007 (113) FLR 50 (50), it has been held by the Apex Court that U.P. Co-operative Societies Act, 1965 is a complete code in itself as regards employment in cooperative societies and its machinery and provisions. He submits that in paragraph 48 of the said judgment it has been stated that a reading of Regulation 103 makes it clear that labour laws will prevail over the Regulations framed under the U.P. Co-operative Societies Act. In the said case, the intention of the legislature is clearly expressed in section 135 i.e. unless excluded by statutes the labour laws will apply. The section actually excludes the application of labour laws but the legislation actually has not brought it into force.
Section 135 of U.P. Co-operative Societies Act, 1965 which though provides that "the provisions contained in the Industrial Disputes Act, 1947 (Act XTV of 1947), and the U.P. Industrial Disputes Act, 1947 (U.P. Act XVHI of 1947), shall not apply to Co-operative Societies, has not been enforced in the State of Uttar Pradesh whereas the object of the U.P. Co-operative Societies Act, 1965 was to consolidate and amend the law relating to co-operative societies in Uttar Pradesh.
It appears that in the above cited case, reference of special Act No. 54 of Industrial Disputes (Banking and Insurance Companies) Act, 1949 in respect of bank was not brought to the notice of their Lordship in the Supreme Court.
In the circumstances, the averments made by the petitioner in paragraph 23 of the writ petition that he has no other alternative remedy except to approach this Court, is incorrect.
In view of overall facts and circumstances of the case and specially in view of the prayer made by the petitioner to decide his representation dated 26.3.2003, appended as Annexure-3 to the writ petition, this writ petition is finally disposed of with the direction that respondent No. 1 will decide the said representation of the petitioner within a period of two months from the date of production of a certified copy of this order. If, thereafter, the petitioner is aggrieved, he may take recourse to law as discussed above.