MEGHJIBHAI MOHANBHAI SAGAR Vs. MANAGER

JUDGEMENT

(1.) THIS petition is filed to challenge order dated 18th May, 2013 passed by Industrial Tribunal, Rajkot rejecting Appeal (I.C.) No.02 of 2012 of the workman. The said Appeal was directed against order dated 19th May, 2011 passed by Labour Court, Amreli in BIR Application No.02 of 1998, which was dismissed by the Labour Court.

(2.) THE relevant facts may be set out to know the controversy. The petitioner workman, the employee of respondent -Cooperative Bank, filed application under Section 78 of the Bombay Industrial Relations Act, 1946 being BIR Application No.02 of 1998. According to the workman, he was working under the respondent -Bank since 1966 discharging his duties with sincerity. It was his case that he was selected in typing section as a Typist and he was presently working as Junior Officer. It was his further case that he had requested the employer to grant the pay grade of Senior Officer, but the request was not responded to. According to the workman, the persons named in paragraph 5 of the application had joined their services subsequent to his joining, yet they were granted Senior Officer's grade and promotion meting out injustice to him. It was contended that the action was illegal and arbitrary. 2.1 It was the further case of the workman that since he was making representations asking for the salary grade, the employer was keeping an ill -will against him. It was alleged that due to that the Bank passed order dated 25th March, 1998 transferring him from Amreli Head Office to Dungar Branch of the Bank. The workman prayed for granting promotion to him from the date when the employees named in paragraph 5 were given promotion as Senior Officer, give the pay grade applicable and pay the arrears. It was secondly prayed that the order of transfer dated 25th March, 1998 made pursuant to the Resolution of the Board of Directors of the Bank was illegal. The incidental prayers regarding implementation of seniority list, etc., were also claimed. 2.2 The respondent filed reply at Exhibit 12 and contended inter alia that the Labour Court had no jurisdiction to entertain the prayer. It was the case of the employer that the transfer was for administrative reasons and it being an incidence of service, thereby any change of service conditions were not effected. It was stated that the services of the workman was transferable at any place in the District, that earlier also the workman was transferred. 2.3 The Labour Court dismissed the application. The Appeal which was preferred under Section 84 of the Bombay Industrial Relations Act, 1946 (hereinafter referred to as 'the BIR Act' for sake of brevity) came to be dismissed which is the order impugned in the present petition.

(3.) LEARNED advocate Ms.Nasreen Shaikh assailed the impugned order of the Tribunal by raising various contentions inter alia that the transfer of the petitioner amounted to illegal change as he was supposed to be in the Typist section and the transfer to the Branch Office Dungar from the Head Office was in the nature of new appointment. It was contended that the respondent -Bank wanted to reduce the strength of permanent employees in the Head Office at Amreli, therefore he was transferred and therefore the Bank was required to give notice of change under Section 42(1) of the BIR Act. It was submitted that his case was covered by Schedule II, Item Nos.1 and 2 of the BIR Act. 4.1 It was further submitted that the petitioner had made application for senior grade in the year 1997 and 1998 and had given an approach letter dated 19th March, 1998 in that regard. It was contended that as per the settlement between the Bank and the Union before the Industrial Tribunal in case No.03 of 1993, the workman was entitled to be promoted from lower cadre to next higher cadre; that the Bank ought to have observed the seniority and ought to have granted promotion. It was submitted that as per the settlement condition No.5, the cadre -wise promotion would have to be granted from Clerk to Junior Officer and Junior Officer to Senior Officer. 4.2 Learned advocate for the petitioner relied on decision of Division Bench of this Court in support of her submissions relied on decision in Amarsinh Swaroopsinh Vs Jagdish Processors, 1993 1 GLH 1101 . The Court inter alia held in the context of Rule 53 of the Bombay Industrial Relations (Gujarat) Rules, 1961 read with Section 42(4) of the Act that these provisions are procedural in nature and are not of mandatory character. It held that if application to the Labour Court made before expiry of the prescribed period, cannot be rejected as not maintainable. 4.3 This petition was contested by the respondent by filing reply affidavit dated 09th November, 2013. Learned advocate for the respondent - Bank supported the impugned order by submitting that it was legal and proper and the Labour Court did not have jurisdiction to try and entertain the subject matter. 4.4 It appears that order dated 13.03.2009 (Exh.200) was initially passed by the Labour Court, Amreli upon the aforesaid BIR Application of the workman. The same was challenged before the Industrial Tribunal which by its order dated 19.05.2011 remanded the case to the Labour Court for decision afresh. The order dated 19.05.2011 passed by the Labour Court was upon remand which was again appealed against before the Tribunal, culminating into the impugned order.