Gopal Lal Vs. Sikar Central Co-operative Bank Ltd. - Court Judgment

Excerpt:
constitution of india - article 12--central co-operative bank--held, it is instrumentality of state under article 12 and is amenable to writ jurisdiction.;the central cooperative bank ltd., sikar is an instrumentality of the state under article 12 and hence amenable to the writ jurisdiction of this court. consequently it follows that the management of the respondent bank is subject to the same constitutional and public law limitations just as the corporations and other government departments are subject to the said limitations and answerable to the citizens.;(b) constitution of india - article 226 and rajasthan co-operative societies act, 1965--section 75--dispute not referred for arbitration under section 75--directions of high court not implemented--held, reference to arbitrator cannot be made precondition for invoking jurisdiction under article 226.;this is not the case where dispute between management and employees should have been referred to arbitration since the said dispute could be referred to arbitration only in the event of arbitration clause as per section 75 of the act being invoked by either the management of the respondent-bank or by the petitioner himself but since this was not done it cannot be made obligatory pre-condition for the petitioner to have referred the matter to the arbitration in view of his having earlier invoked the jurisdiction of this court by way of writ petition under article 226 of the constitution vide s.b. civil writ petition no. 4972/90 which was allowed on 15.5.1992 as referred to above but the directions of this court were not implemented by the respondents.;mandamus issued - - consequently the petitioner resumed his duties in pursuance of the aforesaid order, but contrary to the orders of prescribed authority as well as the aforesaid order of this court, the petitioner was permitted to join his duty on daily rated basis at rs. thereafter the petitioner made series of representations to the respondent bank with a view to give him benefit of regular pay scale as had been extended by the respondent-bank to other similarly placed employees of the bank and also being given the benefit of consequential amount in terms to the orders of the prescribed authority as well as of this court as referred to above vide (annexure 8), dated 26.6.1992 but all too no avail and hence the petition. it has further been contended that having failed to get any relief, he finally served a notice of demand for justice on respondents vide annexure 11 dated 5.7.1993 and it is only thereafter that present writ petition has been filed in this court on 26.10.1993 on the grounds inter-alia that the impugned action of the respondent-bank in not implementing the order dated 30.11.1987 passed by the prescribed authority as well as the order dated 15.5.1992 passed by this court in s. 4972/1990, is contrary to law, grossly illegal and unjust and the petitioner is entitled to be given the benefit of due arrears as admissible to him in accordance with the rules and he is further entitled to the payment of interest @18% per annum on the due amount on account of non-compliance of the aforesaid direction of the prescribed authority as well as of this court as referred to above. 7. on merits the respondent-bank have not disputed the propriety of the orders dated 30.11.1987 passed by the prescribed authority as well as 15.5.1992 passed by this court as referred to above. 8. as regards the first contention advanced by the learned counsel for the respondent-bank that the respondent is not an authority under article 12 of the constitution of india and hence not a 'state',i am of the opinion that this contention of the respondent-bank is entirely unfounded and baseless in view of the fact that after nationalisation of the banks under the banking companies (acquisition and transfer of undertakings) acts of 1970 as well as of 1980, the respondent-bank have become the instrumentalities of the state and are discharging sovereign functions and consequently amenable to the writ jurisdiction of this court under article 226 of the constitution of india. 19.7.69 as well as the banking companies (acquisition and transfer of undertakings act of 1980 (40 of 1980) which came into force w.arun madan, j.1. the petitioner, who is a class iv employee of the sikar central co-operative bank ltd. (for short 'the bank'), has filed this writ petition under article 226 of the constitution of india on the grounds inter-alia that he was initially appointed in the service of the respondent-bank w.e.f. 1.7.1985 as a chowkidar on daily wages basis. after having served in different branches of the respondent-bank, his services came to be terminated w.e.f. 31.7.1986 and as a result thereof he was not allowed to join his duty w.e.f. 1.8.1986.2. the petitioner challenged the termination of his services by moving before the prescribed authority constituted under section 28a of the rajasthan shops and commercial establishment act, 1958 (for short 'the act of 1958'). the proceedings before the prescribed authority were contested by the respondent-bank and the prescribed authority vide its order dated 30.11.1987 declared the termination of the service of the petitioner as unlawful and directed the reinstatement of the petitioner in service with full wages with cost of rs. 200.00 and with a further direction to re-instate the petitioner within stipulated period of 30 days from the date of the said order.3. notwithstanding the above directions of the prescribed authority dated 30.11.1987, it was not implemented by the respondent-bank and the petitioner was not allowed to join his duties, as a result there of the petitioner preferred a writ petition vide s.b. c.w.p. no. 4972/1990 (gopallal v. managing director, sikar central cooperative bank ltd.) for enforcing and implementing the order dated 30.11.1987 passed by the prescribed authority with consequential benefits as directed in the said order. the said writ petition was admitted by this court vide its order dated 10.10.1990 and this court vide its order, dated 15.5.1992 after hearing learned counsel for the parties allowed the same vide its aforesaid order with the direction to the respondent-bank to take back the petitioner in service forthwith and to give him all consequential benefits from the date of the order of prescribed authority, i.e., 30.11.1987 by taking the petitioner to be in continuous service of the respondent-bank, with a further direction to pay back wages to the petitioner w.e.f. 30.11.1987. with regard, to the payment of arrears due to the petitioner, the respondent-bank was directed to make the said payment within one month from the date of submission of certified copy of the said order and if the wages are not paid within the said period, the petitioner shall be further entitled to payment of interest @ 18% per annum from due date vide (annexure 1).4. it has further been contended that failing to get relief, the petitioner made a representation to the respondent along with the certified copy of the order, dated 15.5.1992 of this court. notwithstanding the above, the respondent-bank after the lapse of more than one month telegraphically directed the petitioner on 30.6.92 to join its services at its head office at sikar. consequently the petitioner resumed his duties in pursuance of the aforesaid order, but contrary to the orders of prescribed authority as well as the aforesaid order of this court, the petitioner was permitted to join his duty on daily rated basis at rs. 22.00 per day instead of being fixed in regular pay scale whereas on the contrary the immediate juniors of petitioner, namely, bhagwanlal and rameshwarlal were given regular pay scale of rs. 370-785 in pursuance of the order dated 5.5.1990 passed by the labour court, sikar. it has further been contended in this regard that the above-named persons were initially appointed on the post of chowkidar as daily wagers w.e.f. 1.8.1987, 9.4.1987 and 3.9.1987 respectively, while the petitioner on the contrary had jointed his duties in service of the respondent-bank w.e.f. 1.7.1985 prior to their joining duties and hence was admittedly senior to them and there was no reason for the respondent-bank to deprive the petitioner the benefit of regular pay scale which was granted to the aforesaid persons who were admittedly juniors to the petitioner.5. in this context the petitioner has further contended that in pursuance of the decision taken by the board of directors of the respondent-bank on 5.5.1990 the benefit of regular pay scale was extended to the above-named persons and an order to this effect was also passed by the respondent bank on 4.6.1990. the said decision was perhaps taken in view of the order of the labour court dated 9.5..1990 vide annexure 4 to 7 respectively. thereafter the petitioner made series of representations to the respondent bank with a view to give him benefit of regular pay scale as had been extended by the respondent-bank to other similarly placed employees of the bank and also being given the benefit of consequential amount in terms to the orders of the prescribed authority as well as of this court as referred to above vide (annexure 8), dated 26.6.1992 but all too no avail and hence the petition. it has further been contended that having failed to get any relief, he finally served a notice of demand for justice on respondents vide annexure 11 dated 5.7.1993 and it is only thereafter that present writ petition has been filed in this court on 26.10.1993 on the grounds inter-alia that the impugned action of the respondent-bank in not implementing the order dated 30.11.1987 passed by the prescribed authority as well as the order dated 15.5.1992 passed by this court in s.b. c.w.p. no. 4972/1990, is contrary to law, grossly illegal and unjust and the petitioner is entitled to be given the benefit of due arrears as admissible to him in accordance with the rules and he is further entitled to the payment of interest @ 18% per annum on the due amount on account of non-compliance of the aforesaid direction of the prescribed authority as well as of this court as referred to above. the petitioner has further assailed the impugned action of the respondent in not giving the benefit of regular pay scale to the petitioner, the benefit of which has already been extended to the above-named persons who were immediate juniors to the petitioner and has further assailed the impugned action of the respondent being contrary to the rules and regulations of the respondent-bank, since the petitioner had joined his duties in service of the respondent bank prior to the above named persons and for which this court had already issued mandamus to the respondent for implementing the directions of the prescribed authority and to pay the difference of arrears due to him vide its aforesaid order in s.b. c.w.p. no. 4972/90 as referred to above. the petitioner has further assailed the impugned action of the respondent bank being violative of the articles 14, 16, 21 and 39(d) of the constitution of 'india.6. the respondents being noticed by this court have controverted the aforesaid contentions of the petitioner by contending inter-alia that the respondent-bank is not an authority under article 12 of the constitution of india and also does not come under the definition of 'state' and hence not amenable to the writ jurisdiction of this court under article 226 of the constitution of india. the respondents have further contended in the reply that the principles enshrined under articles 14 & 16 of the constitution of india are not attracted to this case as they are applicable only when the matter is between the citizen and the state; whereas in the present case respondent is not an authority or state and hence there can be no violation of the fundamental rights of the petitioner. it has further been contended that if the petitioner had any grievance, he could raise a dispute under section 75 of the rajasthan co-operative societies act, 1965 (for short 'the act of 1965') which reads as under:section 75-disputes which maybe referred to arbitration (1) notwithstanding anything contained in any law for the time being in force, if any dispute touching the constitution, management, or the business of a cooperative society arises(c) between the society or its committee and any past committee, any officer, agent or employee, or any past officer, past agent or past employee or the nominee, heirs or legal representatives of any deceased officer, deceased agent or deceased employee of the society, or such dispute shall be referred to the registrar for decision and no court shall have jurisdiction to entertain any suit or other proceeding in respect of such dispute.the respondents have contended in this regard that the writ petition is not maintainable before this court, since the petitioner has not exhausted alternative remedy as provided under section 75 of the act of 1965 and moreover since there is dispute between the employee of the society and the management of the bank, same cannot be adjudicated by this court in exercise of its extraordinary jurisdiction under article 226 of the constitution of india.7. on merits the respondent-bank have not disputed the propriety of the orders dated 30.11.1987 passed by the prescribed authority as well as 15.5.1992 passed by this court as referred to above. they have however, contended that the petitioner has already been given the benefit of arrears as directed by this court and that a sum of rs. 24154.00 was paid to the petitioner on 26.6.1992 in pursuance of the order of this court dated 15.5.1992. with regard to the regular pay scale which was extended to the above-named persons, it has been contended that the same was given above the limit of sanctioned strength and an enquiry was made in this regard under section 17 of the act and directions were given by the registrar of the cooperative societies under section 70(7) after the receipt of out-come of the enquiry under section 17(6) of the act and the then chairman and the managing director were found guilty of lapses on their part.8. as regards the first contention advanced by the learned counsel for the respondent-bank that the respondent is not an authority under article 12 of the constitution of india and hence not a 'state', i am of the opinion that this contention of the respondent-bank is entirely unfounded and baseless in view of the fact that after nationalisation of the banks under the banking companies (acquisition and transfer of undertakings) acts of 1970 as well as of 1980, the respondent-bank have become the instrumentalities of the state and are discharging sovereign functions and consequently amenable to the writ jurisdiction of this court under article 226 of the constitution of india. in the event of violation of the fundamental rights of an employee of the bank under articles 14 & 16 of the constitution of india, the same can be agitated by way of writ petition before this court under article 226 of the constitution. consequently any dispute touching the management of the financial institutions which arises between the bank and the private party viz. account-holders having their deposits in the said bank or the disputes arising between the management of the bank and it's employees are covered by the aforesaid statutes and it is always open to the aggrieved party to invoke the writ jurisdiction of this court under article 226 of the constitution.9. since the respondent-bank is a central cooperative bank ltd., sikar registered under the act of 1965 and it is being run according to the byelaws of the act and hence an instrumentality of the state within the ambit of article 12 of the constitution and thus amenable to the jurisdiction of this court. i am fortified in my observations from the judgment of the apex court in the matter of ajay hasiar and ors. v. khalid mujib sehravardi and ors.: 1981(1) scc 722 and of this court in the matter of phool chand v. state of rajasthan and ors.: 1985 rlr 365 (db) and deepak kumar khinvsara v. oil india ltd. and ors.: 1996 wlr (raj.) 321.10. in the matter of ajay hasia v. khalid mujib (supra) the question which came up for consideration of the apex court was as to whether regional engineering college, srinagar which was established, administered and managed by a society registered under j & k registration of societies act, was an instrumentality or agency of the state and the central government and thus an 'authority' within the ambit of article 12. it was held by the apex court that concept of instrumentality or agency of the government is not limited to a cooperative created by a statute but equally applicable to a company or society and in given case it would have to be decided on consideration of the relevant factors whether the company or the society is an instrumentality or agency of the government so as to come within the meaning and the expression 'authority' in article 12. it was further held that the test for determining if an authority falls within the definition of 'state' in article 12 is whether it is an instrumentality or agency of the government as per the criteria laid down by the apex court in the matter of r.d. shetty v. international airport authority of india: 1979 (3) scc 489 wherein the apex court held that the corporations acting as instrumentality or agency of the government would obviously be subject to the same limitations in the field of constitutional and administrative law as government itself, though in the eye of law, they would be distinct and independent legal entities. if the government acting through its officers is subject to certain constitutional and public law limitations, it must follow a fortiori that government acting through the instrumentality or agency of the corporations should equally be subject to the same limitations. applying the ratio of the aforesaid judgments of the apex court, i am of the view that the central cooperative bank ltd., sikar is an instrumentality of the state under article 12 and hence amenable to the writ jurisdiction of this court. consequently it follows that the management of the respondent bank is subject to the same constitutional and public law limitations just as the corporations and other government departments are subject to the said limitations and answerable to the citizens.11. in the matter of phool chand and ors. v. state of raj. and ors (supra) learned division bench of this court has also taken the view that the central cooperative bank ltd., bharatpur is an authority or instrumentality of the state and as such amenable to the writ jurisdiction of this court.12. further more, the very object of the legislature in enacting the banking companies (acquisition and transfer of undertakings) act of 1970 (5 of 1970) which came into force w.e.f. 19.7.69 as well as the banking companies (acquisition and transfer of undertakings act of 1980 (40 of 1980) which came into force w.e.f. 11.7.1980, was to transfer the undertakings of the centralised banks including cooperative banks registered under the rajasthan cooperative societies act, 1965 by virtue of powers conferred by section 2(e) of the reserve bank of india act, 1934 (act no. 2 of 1934) of the cooperative banks or the central cooperative banks functioning within the state of rajasthan to be instrumentalities of the state under article 12 and hence the state'.13. as regards the second contention of learned counsel for respondent-bank regarding maintainability of the writ petition in view of the alternative remedy of arbitration stipulated under section 75 of the act of 1965, i am of the view that this is not the case where dispute between management and employees should have been referred to arbitration since the said dispute could be referred to arbitration only in the event of arbitration clause as per section 75 of the act being invoked by either the management of the respondent-bank or by the petitioner himself but since this was not done it cannot be made obligatory pre-condition for the petitioner to have referred the matter to the arbitration in view' of his having earlier invoked the jurisdiction of this court by way of writ petition under article 226 of the constitution vide s.b. civil writ petition no. 4972/90 which was allowed on 15.5.1992 as referred to above but the directions of this court were not implemented by the respondents.14. i am thus of the opinion that in view of the above discussions, the petitioner deserves to succeed. the writ petition is consequently allowed and mandamus is issued to the respondent bank with a direction to implement the directions of this court contained in its order, dated 15.5.1992 in s.b. civil writ petition no. 4972/90 immediately by giving the benefit of regular pay scale to the petitioner of rs: 370-785 and regularisation of the petitioner w.e.f. 10.5.1990/4.6.1990, i.e., the date from which his immediate juniors were given the said benefit and regularisation of their services with consequential benefits. i am informed by the learned counsel for the respondent-bank that they have already made the payment of rs. 24154.00 to the petitioner on 26.6.1992. if this payment or any other payment which has been made to the petitioner by the respondent-bank, the same shall be deducted from the amount finally due to the petitioner in accordance with the rules. there will be no order as to costs. the respondent-bank is directed to comply with the aforesaid directions within a period of 90 days from the date of submission of certified copy of this order. the writ petition is accordingly disposed off with no order as to costs.