The Goa Urban Co-operative Bank Ltd. vs State of Goa and Others

R. K. Batta, J.—Respondent No. 3 was appointed as Clerk on probation on 1.3.1980 in the Petitioner Bank and her services were confirmed with effect from 15.12.1980. She applied for and was granted privilege leave for 21 days from 25.8.1982 to 14.9.1982. Thereafter, she applied for maternity leave on 90 days and the same was granted till 12.12.1982. Thereafter, she applied for 45 days privilege leave with effect from 13.12.1982 to 26.1.1983. Thereafter Respondent No. 3 neither applied for extension of leave nor resumed duties. According to the Petitioner, the entire privilege leave to the credit of Respondent No. 3 had been exhausted with effect from 28.1.1983. On 8.6.1982, Respondent No. 3 wrote a letter from Kuwait and requested the Petitioner to issue a Bank Experience Certificate. This letter is stated to have been received by the Petitioner on 24.1.1983 and on receipt of this letter, the Petitioner sent letter dated 25th January 1983 to Respondent No. 3 informing her that the service certificate could be issued to her only after an employee has left the services and Respondent No. 3 was required to furnish particulars relating to her passport and date of departure from India. Reminder was sent by the Petitioner to Respondent No. 3 on 19th February 1983. The Petitioner vide letter dated 2nd March 1983, informed that she had left India in the first week of January 1983. On 14th May 1983, the Petitioner sent a letter to Respondent No. 3 that she had been absenting from duties with effect from 28th January 1983 without intimation and she was advised to resume duties immediately. The Respondent No. 3 vide letter dated 28th May 1983, admitted in clear terms that she remained absent from her duties with effect from 28.1.1983 without intimation. She further stated that she could not join duties on account of sickness of her child and she would join duties latest in the month of June, if possible earlier. The Respondent No. 3 did not join duties as stated by her till the end of June or, for that matter, till 20th of August, 1983 and, as such, her services were terminated on account of long unauthorised absence without permission. The Respondent No. 3 vide letter dated 28th August, 1983 accepted under protest the dues sent by the Petitioner along with the letter dated 20th August, 1983 and reserved her right to institute legal proceedings for reinstatement and also to recover her arrears, back wages through appropriate Authority. Thereafter, Respondent No. 3 on 6.1.1990, requested the Petitioner to re-consider the termination of her services. The Petitioner vide letter dated 20th August 1994, rejected the said request as well as request for re-employment. The Respondent No. 3, then, filed an application u/s 12 raising industrial dispute. Along with the said application, she filed an application for condonation of delay as well. The Assistant Labour Commissioner vide letter dated 25.11.1991 reported failure of conciliation to the Secretary, Labour Secretariat, Panaji, Goa and, thereafter, vide order dated 3.3.1992 reference u/s 10 of the Industrial Disputes Act, 1947 was made by the Government on 3.3.1992. The terms of reference are as under :-

(1) Whether the action of the management of the Goa Urban Co-operative Bank Ltd., Punaji, in terminating the services of Smt. Olivia D''Souza, Clerk, with effect from 29.8.1993 is legal and justified

(2) If not, to what relief the workman is entitled ?

Subsequently, by Corrigendum dated 27.8.1992, the date of termination was corrected from 29.8.93 to 29.8.83.

The Petitioner seeks directions in the nature of Mandamus to Respondent No. 1 to withdraw the said reference and also writ in the nature of prohibition restraining Respondent No. 2 from proceeding with the reference. At the admission stage. The proceedings before Respondent No. 2 were stayed.

In this Writ Petition, the reference has been challenged on various grounds, but the learned Advocate for the Petitioner has restricted his challenge to the ground of inordinate delay in making the reference in question.

Learned Advocate Shri A. P. Lawande for the Petitioner urged before me that the reference suffers from inordinate delay and laches and Respondent No, 1 had erred in making a reference in respect of such a belated claim which was made after a period of 7 years,

He pointed out that the Government has not filed any Return in the matter. Learned Government Advocate Shri Bharne, however, placed the records before me. Relying on Vazir Sultan Tobacco Company Ltd., Hyderabad v. State of Andhra Pradesh and others 1964 I L.L.J. 622 Madras District Automobile and General Employees Union v. State of Madras and others 1964 II L.L.J. 407 , State of Punjab and Others Vs. Gurdev Singh, and R. Ganeshan v. Union of India and others. 1993 Lab. I.C. 802, it is submitted before me by Ld Act for Pelitioner chat the reference be quashed.

On the other hand, learned Advocate Shri D. B. Ambekar, appearing on behalf of Respondent No. 3, urged before me that the Respondent No. 3 has a very good case on merits and the Order of termination is avoid ab initio, as the same has been made without conducting any enquiry and is in contravention of Third Bipartite Settlement between the Goa, Urban Co-operative Bank Employees Union and the Management of the Goa Urban Co-operative Bank Ltd. (hereinafter referred to as Third Bipartite Settlement). He referred to sub-clause c) of Clause VII, Clause XII and Clause XIII of the said Third Bipartite Settlement. He also cited rulings of the Apex Court in Guest, Keen, Williams Private Ltd. Vs. P.J. Sterling and Others, , Avon Services Production Agencies (P) Ltd. Vs. Industrial Tribunal, Haryana and Others, , Shambu Nath Goyal Vs. Bank of Baroda, and The Rajasthan State Road Transport Corporation and anr. etc. etc. v. Krishna Kant etc. etc.. 1995 (2) L.L.J. 728, in order to show that Respondent No. 3 could only approach the Industrial Tribunal in terms of Standing Orders applicable in that behalf. There is, of course, no dispute that the Petitioner could only approach the Industrial Tribunal in relation to her grievances. It may be mentioned that the ruling of the Apex Court in State of Punjab and Others v. Gurdev Singh (supra) would not strictly apply to the facts and circumstances of this case.

On the question of delay in raising the dispute, it was urged by learned Advocate for Respondent No. 3 that the Respondent No. 3 had filed an Appeal before the Petitioner on 28.8.1983 (Exhibit ''J'' on record), and this Appeal was never disposed by the Petitioner as a result of which the Respondent No. 3 continued awaiting for the outcome of the said Appeal; that from the year 1986 onwards the Respondent No. 3 approached the Petitioner on several occasions, but she could not succeed in her endeavour either to get reinstatement or re-employment and, thereafter, filed a letter in writing on 6.1.1990 for re-consideration of termination and for re-employment, but since the same was not considered by the Petitioner, vide letter dated 10th March 1990, the Respondent No. 3 filed an application u/s 12 of the Industrial Disputes Act with the Labour Commissioner on 31.5.1990. On the basis of the above mentioned facts, it was submitted by learned Advocate for Respondent No. 3 that there has been, in fact, no delay on the pan of Respondent No. 3 inraising the dispute and even if there was some delay, the Government thought it expedient to make the reference and not to reject the reference on the ground of delay. He, therefore, submits that this Court in exercise of writ jurisdiction, should not interfere with the discretion exercised by the Government in making the reference and the Writ Petition be rejected.

As already stated the only challenge that the Petitioner wants to press in this Writ Petition at the time of hearing is the question of laches and inordinate delay in raising the dispute. I have already recorded the facts in detail and it would suffice at this stage to state that, according to Petitioner, all leave including privilege leave, had been exhausted by Respondent No. 3 till 27.1.1983 and from 28.1.1983 she did not have any further leave to her credit. This fact is denied by Respondent No. 3. The Respondent No. 3 did not seek any extension of leave with effect from 28.1.1983 and by letter dated 28th May 1983, had expressed her desire to join duties latest in the month of June and if possible, earlier. Respondent No. 3 did not join the services till 20th August 1983 nor sought for extension of any leave and the Petitioner terminated her services vide letter dated 20th August 1983. Respondent No. 3 vide letter dated 28th August 1983 acknowledged the receipt of the said letter along with Pay Order and submitted that her absence was not unauthorised and that she reserves her right to institute legal proceedings for reinstatement, to recover arrears and back wages through appropriate Authority. According to learned Advocate for Respondent No. 3, this letter was, in fact, an appeal filed by Respondent No. 3 with the Petitioner and the Petitioner never cared to decide the said appeal. There is absolutely no merit in the contention of learned Advocate for Respondent No. 3 that this letter dated 28th August 1983 was an appeal. On the contrary, vide this letter, the Respondent No. 3 had reserved her right to institute legal proceedings for reinstatement and also to recover arrears and back wages through appropriate Authority.

The case of the Petitioner is that, after this letter dated 28th August 1983. Respondent No. 3 never contacted the Petitioner nor sent any letter for a period of almost 7 years and it was only on 6th January 1990 that the Respondent No. 3 requested for re-consideration of termination and, in the alternative, for re-employment. The case of Respondent No. 3, on the other hand, is that she made several efforts by contacting the Petitioner from November, 1986 onwards, but the Petitioner did not look into her grievances submitted orally. Respondent No. 3 in para 12 of her application u/s 12 of the said Act had stated that in the month of November 1986, she came down to Goa and made representation to Shri S. V. Kamat who referred her to Mr. Bhat who was Administrator of Respondent No. 2 at the relevant time. This contention of the Respondent No. 3 has been denied by the Petitioner vide reply dated 20th June 1990 filed before the Conciliation Authority. The contention of Respondent No. 3 that she met several times the Petitioner is not borne out by the said application u/s 12 and it is only subsequently in the affidavit-in-reply filed in this Court that it is made to appear that she had several times approached the Petitioner, but no action was taken by the Petitioner. This stand of the Respondent No. 3 cannot be accepted and the same has to be discarded. The result is that for a period of about six and half years, Respondent No. 3 did not bother to raise any dispute in respect other termination. This inordinate delay and laches on the part of Respondent No. 3 does not appear to have even been considered by the Government while making reference u/s 10. This inordinate delay and laches, by itself, would disentitle Respondent No. 3 from seeking any reference in the matter.

Learned Advocate for the Petitioner has relied upon a judgment of Single Judge of this Court in R. Ganeshan v. Union of India and Others (supra) in order to bring home his point that on account of inordinate delay, for which Respondent No. 3 had not given any explanation, the Government was not justified in making the reference. In the said case before the learned Single Judge of this Court, the services of the petitioner were terminated on 8th October 1980 and the petitioner had raised the dispute on 12th November 1987.

The Government had declined to make reference for adjudication of the dispute on the ground that the dispute was highly belated inasmuch as it has been raised after lapse of a period of seven years and no justification has been given for the delay. It was pointed by the learned Advocate for the Petitioner therein that the Petitioner had filed Departmental Appeal which was dismissed on 3rd January 1981 and the dismissal was finally confirmed when the approval was granted on 24th May 1984, It was also urged by the Petitioner that in the meantime the Petitioner continued making representations to the higher Authorities including the Minister for Aviation, Prime Minister as also the President of India. After placing reliance on the Apex Court judgment in Bombay Union of Journalists and Others Vs. The State of Bombay and Another, , and that of the Madras High Court in Shaw Wallace and Co. Ltd. Vs. State of Tamil Nadu and Others, , it was held by the learned Single Judge that the claim is stale and belated and the petition for direction to the Government for making reference was dismissed. The learned Single Judge had also taken into consideration the facts, while coming to the said conclusion, that the petitioner had continued making representations to the higher authorities and that the dismissal order was finally confirmed when approval was granted on 24th May 1984, but even after 24th May 1984 and till 12th November 1987, i.e. fora period of 3 years, there was nocogent and satisfactory explanation for inaction on the part of the Petitioner. The ratio laid down in this case applies with equal force to the facts under consideration wherein the Respondent No. 3 has been guilty of laches for not raising the dispute for a period of 6 and half years. The Respondent No. 3 slept over the matter for such a long time and for such a belated claim, reference by the Government cannot be justified. Most of the rulings which have been relied upon by the learned Advocate for Respondent No. 3 are not attracted since the only challenge pressed in this Petition is laches and inordinate delay. Learned Advocate for the Respondent No. 3 had also relied upon Apex Court judgment in Guest, Keen, Williams Pr. Ltd. Calcutta v. P. J. Sterling and Others (supra) wherein the facts reflect that there was hardly any delay. In para 12 of the said judgement, it is stated that the present dispute was raised by the Respondent as soon as the appellant sought to enforce it in May 1954 and it was difficult to accept the argument that the Respondent was guilty of laches or acquiescence. It was in this context that the observations contained in para 14 had been made by the Apex Court.

For the seasons mentioned above, I hold that there is absolutely no justification for inordinate delay, laches and inaction on the part of the Petitioner in not approaching the authorities for six and half years. The Government has also not furnished any reasons or explanation for making reference of belated claim under the circumstances. Accordingly, the reference dated 3.3.1992 read with Corrigendum dated 27.8.1992 is hereby quashed and the Respondent No. 2 shall not proceed with the said reference. Thus, the Writ Petition succeeds and is allowed. Rule made absolute in terms of prayer clauses 31 (a) and (b) of the Writ Petition. Costs shall be borne by Respondent No. 3.