South Malabar Gramin Bank v. South Malabar Gramin Bank Deposit Collectors Union & Labour Court, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** **THE HONOURABLE MR.JUSTICE THOTTATHIL B.RADHAKRISHNAN & THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR** **TUESDAY, THE 12TH DAY OF AUGUST 2014/21ST SRAVANA, 1936** **WA.No. 1446 of 2011 ( ) IN WP(C).25275/2006 ------------------------------------------------** **AGAINST THE ORDER/JUDGMENT IN WP(C) 25275/2006 OF HIGH COURT OF KERALA DATED 28-05-2009** **APPELLANT(S)/1ST RESPONDENT:** ## **--------------------------------------------** **SOUTH MALABAR GRAMIN BANK, (A SCHEDULED BANK SPONSORED BY CANARA BANK) HEAD OFFICE, MALAPPURAM-676 505 REPRESENTED BY ITS GENERAL MANAGER.** **BY ADV. SRI.T.R.RAVI** **RESPONDENT(S)/PETITIONER & 2ND RESPONDENT.:** **---------------------------------------------** **1. SOUTH MALABAR GRAMIN BANK DEPOSIT COLLECTORS UNION, C/O.SOUTH MALABAR GRAMIN BANK KIZHISSERY BRANCH, P.O.KUZHIMANNA, MALAPPURAM DISTRICT REPRESENTED BY ITS GENERAL SECRETARY, PIN -673 641. 2. THE LABOUR COURT, KOZHIKODE-673 001.** **R1 BY ADV. SRI.P.RAMAKRISHNAN** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-08-2014, ALONG WITH WA. 1466/2011 AND WP(C) NO.24325 OF 2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **WA 1446/11** ## **APPENDIX** ## **APPELLANT'S EXHIBITS** ## **NIL** ## **RESPONDENT'S EXHIBITS** **ANNEXURE-A : COPY OF AWARD DATED 18.06.2010 IN I.D.NO.2/93.** **//TRUE COPY//** **PA TO JUDGE.** **jg** ## THOTTATHIL B.RADHAKRISHNAN & P.B.SURESH KUMAR, JJ. .................................................................... W.A.Nos.1446 & 1466 of 2011 and WP(C) No.24325 of 2011 .................................................................... Dated this the 12[th] day of August, 2014. ## J U D G M E N T / O R D E R ## Thottathil B.Radhakrishnan, J. - 1.Heard the learned counsel for the parties. - 2.The captioned writ appeals are against a common judgment deciding two writ petitions; one filed by the South Malabar Gramin Bank, a Regional Rural Bank constituted under the Regional Rural Banks Act, 1976; and the other by a Union of the deposit collectors of that Bank. An award passed by the Labour Court on a claim raised and referred, at the instance of workmen of the Bank, was under challenge in those writ petitions. - 3.We may here itself note that in an earlier round, the question as to whether the deposit collectors were workmen for the purpose of WA 1446, 1466 & WPC 24325/11 **==> picture [15 x 9] intentionally omitted <==** the Industrial Disputes Act, 1947 (for short, 'ID Act') was raised and concluded at the hands of the Division Bench of this Court in favour of the deposit collectors and against the Bank, applying the precedent in Indian Banks Association v. Workmen of Syndicate Bank and Others [(2001) 3 SCC 36]. - 4.After the aforesaid round, the Labour Court passed an award de novo on the other issues. That was the subject matter of the aforesaid writ petitions. The deposit collectors' Union won before the learned single Judge to the extent of their contentions. The Bank having lost its writ petition and its defence to the plea of deposit collectors' Union, has filed writ appeals challenging the common judgment of the learned single Judge. - 5.As already noted, the common judgment was delivered by the learned single Judge on 28.05.2009. The learned single Judge had set aside the award of the Labour Court to certain extent and directed adjudication de novo on certain issues. Following that, WA 1446, 1466 & WPC 24325/11 -3- the Labour Court decided on the issues, by passing yet another award. That prompted the Bank to file WP(C) No.24325 of 2011 challenging that award. It appears that the Bank then thought that it would be necessary for them to challenge the decision of the learned single Judge rendered on 28.05.2009 in WP(C) Nos.18025 and 25275 of 2006. That is why these two writ appeals with applications seeking condonation of delay are filed by the Bank. 6.The applications seeking condonation of delay have already been allowed. Be that as it may, we need to examine as to whether, at this point of time, it would be appropriate for the High Court in these intra-court appeals under Section 5 of the Kerala High Court Act, 1958 to set aside the judicial review order made by the learned single Judge through the common judgment dated 28.05.2009 issued in writ jurisdiction, long after the said common judgment has reached its logical result of another award from the Labour Court. WA 1446, 1466 & WPC 24325/11 -4- 7.We may, at once, recall that, in the realm of civil appeals understood in terms of the Code of Civil Procedure and in different hierarchy of appeals in different jurisdictions, when an order of remand is set aside, it also takes away all subsequent actions, which followed that order of remand. This is why, even if an order of remand is not stayed by a superior court in an appeal against an order of remand under the Code, that appeal would continue to hold good and could be granted even if the order of remand had fructified into further orders by subordinate jurisdictions. - 8.But in writ appeals under Section 5 of the Kerala High Court Act, 1958 against orders issued by single Judge in writ jurisdiction, we are unable to follow and adopt the same procedure. We say this because, to grant or not, a relief of the issuance of a writ in the nature of those prescribed under Article 226 of the Constitution of India is well within the format of discretionary reliefs regulated WA 1446, 1466 & WPC 24325/11 -5- by well settled principles regulating that jurisdiction. The writ appellate jurisdiction under Section 5, though is a statutory jurisdiction, would not be exercised in cases where the discretionary reliefs have been granted or refused by applying the legally acceptable yardsticks and relevant doctrines. Therefore, we are unable to conceive a situation where actions taken by a statutory authority, like the Labour Court, under the ID Act pursuant to a writ court's order in the nature of the one that is impugned before us could be struck off in toto by allowing these appeals, at this distance of time, much against the interest of class of persons, who have been found to fall within the definition of the term 'workmen' in the ID Act. - 9.The aforesaid position notwithstanding, we may also note that the ultimate plea of the appealing Bank is that the Union, which is now attempting to espouse cause, is one which was born long after the deposit collectors had been engaged and that even such a Union is trying to espouse the cause much after the real issues WA 1446, 1466 & WPC 24325/11 -6- have arisen, and therefore, the doctrine of sit back, acquiescence, estoppel, etc. would operate against the issues being raised by the deposit collectors' Union. It is pointed out that the Union itself was born years after the orders impugned before the Labour Court, and therefore, the plea raised by the Union ought to have been held as stale. We may straightaway say that such questions are also mixed questions of law and fact and cannot be raised for the first time in writ jurisdiction or in an appeal therefrom. It ought to have been put before the Labour Court and an adjudication ought to have been insisted upon on such issues before the Labour Court. Going through the records, we see that such an approach has not been adopted by the Bank before the Labour Court. Under such circumstances, we are not able to countenance it now. Even after the learned single Judge had delivered the impugned common judgment on 28.05.2009, we do not see that such an issue was mooted before the Labour Court for adjudication. With this, we see no merit in these writ appeals. However, we would preserve any other ground available to the WA 1446, 1466 & WPC 24325/11 **==> picture [15 x 9] intentionally omitted <==** Bank to challenge the award passed by the Labour Court on 18.06.2010, which is, pointedly, challenged in WP(C) No.24325 of 2011. In the result, - (i) WP(C) No.24325 of 2011 is delinked from this batch of cases. - (ii) The writ appeals are dismissed. - (iii) WP(C) No.24325 of 2011 will be listed as per roster for consideration by the learned single Judge. All issues, except those decided hereinabove, will stand open for consideration in the aforesaid writ petition. (THOTTATHIL B.RADHAKRISHNAN, JUDGE) - (P.B.SURESH KUMAR, JUDGE) jg