BOMBAY MERCANTILE CO OPERATIVE BANK LTD Vs. MEMBER

JUDGEMENT

(1.) Heard learned Advocate Mr. K. D. Gandhi for M/s. Nanavati Associates for petitioner-Bombay Mercantile Co-operative Bank Limited.

(2.) By filing this petition under Art. 227 of Constitution of India, petitioner has challenged order passed by Industrial Tribunal, Ahmedabad in Reference (I.T.C.) No. 18 of 1995 (Old Number) and 1618 of 2008 (New Number) Exh. 48 dated 16th January, 2010. Industrial Tribunal (Central) has dismissed application Exh. 48 submitted by petitioner-Bank and has fixed furdier heading of said Reference on 1st February, 2010. During the course of hearing, prayer was made by learned Advocate for petitioner to amend prayer and has prayed for permitting petitioner for praying to stay proceedings of said Reference and order Exh. 48 both. Such prayer is granted. Petitioner is directed to amend accordingly.

(3.) Learned Advocate Mr. Gandhi for petitioner raised contention before this Court that before Industrial Tribunal (Central), application was made by petitioner-Bank on 19-9-2008 raising preliminary contention vide Exh. 48 that in view of the recent decision of Apex Court in the matter of Bharat Co-operative Bank Mumbai Ltd. v. Co-operative Bank Employees Association, 2007 AIR(SC) 2320, appropriate Government is the State Government and not the Central Government, therefore, Reference which has been made by Central Government against present petitioner is not legal and valid and in respect of present petitioner-Bank, State Government is appropriate Government under Sec. 2(a) of the I. D. Act, 1947. Said application was replied by present respondent raising objection on 16th September, 2009. Copy of reply received by petitioner on same day 16th September, 2009. The Petitioner has, in support of its submission, relied upon copy of application made by employer to Central Government Industrial Tribunal Bombay in Reference No. CGIT 2/52 of 2005 dated 23rd October, 2007 raised contention by employer Bank raising same contention before Industrial Tribunal Central Government, Bombay. Said contention has been examined by Presiding Officer, A A Lad, Industrial Tribunal (Central) No. 2 in Reference No. 2/52 of 2005 and came to the conclusion in respect to employer Bank relying upon Apex Court decision in case of Bharat Co-operative Bank (supra) that appropriate Government is not Central Government but State Government by order dated 7-10-2008. Accordingly, Reference was disposed of by Industrial Tribunal for want of jurisdiction of the said Industrial Tribunal (Central). This order has been passed by Industrial Tribunal (Central) Bombay on 7th October, 2008. Said decision of Bombay Tribunal has been relied upon by learned Advocate Mr. Gandhi. Learned Advocate Mr. Gandhi submitted that Industrial Tribunal (Central) has committed gross error in rejecting application filed by petitioner Exh. 48. He also submitted that law laid down by Apex Court is binding to subordinate Courts under Art. 141 of the Constitution of India. Even though, decision, though relied by petitioner, not accepted by Industrial Tribunal (Central) on the ground that such decision is not having any retrospective effect and decision of Apex Court is also not much clear whether it applies with retrospective effect or with prospective effect? He also submitted that the view taken by the Industrial Tribunal (Central) is erroneous because it is settled law that judicial decision, unless otherwise specified, is retrospective in effect while relying upon decision of Apex Court in case of General Manager, Uttaranchal Jal Sansthan v. Laxmi Devi, 2009 AIR(SC) 3121 where Apex Court has held that judicial decision, unless otherwise specified, are having retrospective effect. They would only ! be in prospective in nature if it has been provided therein. He also relied upon another decision in case of M.A. Murthy v. State of Karnataka, 2003 AIR(SC) 3821 and submitted that in said decision, it has been held by Apex Court that a decision, unless indicated therein to be operative prospectively, cannot be treated to be so. He submitted that the Apex Court has also held that normally decision of Apex Court enunciating a principle of law is applicable to all cases irrespective of stage of pendency thereof, because it is assumed that what is enunciated by Apex Court is in fact the law from inception. He submitted that the doctrine of prospective overruling which is a feature of American Jurisprudence is an exception to the normal principle of law. He submitted that the Apex Court has further held that it is for Apex Court to indicate as to whether the decision in question will operate prospectively or not. As per his submission, in other words, there shall be no prospective overruling unless it is so indicated in the particular decision. Doctrine of binding precedent helps in promoting certainty and consistency in judicial decisions and enables an organic development of the law besides providing assurance to the individual as to the consequences of transactions forming part of the daily affairs. Relying upon aforesaid two decisions, learned Advocate Mr. Gandhi submitted that the view taken by Industrial Tribunal (Central) is contrary to law decided by Apex Court. He submitted that in Bharat Co-operative Bank Limited case, Apex Court has not made it clear that it will apply with prospective effect, therefore, it must apply with retrospective effect to all pending cases, therefore, according to him, Industrial Tribunal (Central) has committed gross error in rejecting application Exh. 48. Learned Advocate Mr. Gandhi has read before this Court order in question passed by Industrial Tribunal (Central). He also emphasized view taken by Apex Court in Bharat Co-op. Bank Limited as referred above and submitted that said decision is clearly applicable to facts of present case which has not been properly appreciated by Industrial Tribunal (Central), and therefore, present petition is filed. Except that, no other submission is made by learned Advocate Mr. Gandhi and no other decision has been cited by him before this Court in support of contentions raised by him as aforesaid.