SCA/6371/1997 1/12 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 6371 of 1997 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= KALYAN CO OPERATIVE BANK - Petitioner(s) Versus ASSISTANT REGISTRAR,BOMBAY INDUSTIRAL RELATIONS ACT 1946 & 1 - Respondent(s) ========================================================= Appearance : MR MK VAKHARIA for Petitioner(s) : 1, MR KUNAL PANDYA, AGP FOR Respondent – 1. RULE SERVED for Respondent(s) : 1 – 2. ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 28/07/2008 ORAL JUDGMENT In this petition, the petitioner has challenged order dated 18.9.1958 passed by the Assistant Registrar, Bombay Industrial Relations Act, 1946 (i.e. Respondent No.1) whereby, the Assistant SCA/6371/1997 2/12 JUDGMENT Registrar recognized the petitioner as an undertaking in banking industry under the provisions of Bombay Industrial Relations Act, 1946 (hereinafter referred to as “the BIR Act”). The petitioner has also prayed for writ of prohibition or mandamus against the labour court so as to restrain the labour court from executing the award dated 17.7.1997. So far as the relief prayed for in paragraph 8(B) in connection with the award dated 17.7.1997 is concerned, it is pertinent that this court (Hon'ble Mr. Justice H.L.Gokhle {as his lordship then was}) has passed an order on 1.10.1997 that:- “1. xxx xxx 2. Mr. Parmar seeks an interim stay on the execution and operation of the order passed in Application No.4 of 1987 (i.e. the aforesaid order dated 17.7.1997). For that he has a remedy of filing an appeal under Sec.84 of that Act. On filing that appeal, he is at liberty to point out to that court that this main issue is now under consideration in the High Court in this petition and SCA/6371/1997 3/12 JUDGMENT therefore on that footing, he may pray for stay before the Tribunal. In the event of any difficulty, he will have a liberty to approach this court. Liberty to amend this present petition and to add order in Application No.4 of 1987, as also appeal memo in (IC) 1/97 on the record of the present proceedings. Amendment to be carried out on or before 7th October, 1997. 3. Rule on this petition. To be made returnable on 17th November, 1997.” Thus, so far as the relief prayed for against the order dated 17.7.1997 passed by the labour court in Application No.4 of 1987 is concerned, the same does not survive after the aforesaid order dated 1.10.1997 inasmuch as the applicant was relegated to alternate statutory remedy and was directed to prefer appeal against the order dated 17.7.1997. By the said order dated 17.7.1997, the labour court declared the action of the petitioner as an “illegal change.” Since the implementation and operation of the said order was not stayed, the SCA/6371/1997 4/12 JUDGMENT petitioner is supposed to have implemented the said order. The applicant of the said application No. 4 of 1987 i.e. respondent No.2 herein does not appear to have approached this court by any independent proceedings making any grievance against non- compliance of the said order dated 17.7.1997. Further, even though said Mr. Rupala has been joined as respondent No.2 in this petition, he has not entered appearance. The cause list shows that the rule has been served on both the respondents of present petition. Under the circumstances, it appears safe to presume that the petitioner has complied with the said order dated 17.7.1997 or that respondent has no grievance against petitioner on the strength of said order. Thus, so far as the said order dated 17.7.1997 is concerned the petition does not survive and has become infructuous to that extent. It is, however, clarified that if the petitioner has not complied with the said order dated 17.7.1997 and if the respondent No.2 has any grievance on that count then, this order will not SCA/6371/1997 5/12 JUDGMENT come in his way. Absence of any stay order against the subject order dated 17.7.1997 is sufficient ground to not to entertain challenge against the said order, now after 11 years. Thus, the aforesaid clarification takes this court to the main challenge of the petitioner against the order dated 18.9.1958 passed by respondent No.1 Assistant Registrar i.e. the respondent No.1. In this regard, it is pertinent that against the said order dated 18.9.1958 the petitioner had preferred an appeal being appeal (IC) No.1 of 1997 i.e. after almost 39 years before the Industrial Court. After hearing the parties, the Industrial Court was pleased to reject the appeal by order dated 31.3.1997. It is pertinent that the said appeal was preferred by the petitioner after lapse of almost 39 years since the date on which the said order was passed. Thus, the said order dated 18.9.1958 had SCA/6371/1997 6/12 JUDGMENT remained in operation, uninterrupted and unchallenged for almost 39 years. Further, one of the grounds of the petitioner's objection against the said order dated 18.9.1958 was that the petitioner, cooperative society, though engaged in the business of giving loans, was not “a bank” as contemplated under the provisions of the Act and that therefore, the provisions of the Act would not be applicable to the petitioner society. During the discussions and in response to the query posed by the court, it has now been given out on behalf of the petitioner that the provisions under Banking Regulations Act, 1949 (hereinafter referred to as “the 1949 Act”) are made applicable to the petitioner society and the Reserve Bank of India has also issued licence in favour of the petitioner. In view of such facts and circumstances, the challenge by the petitioner against the impugned order dated 18.9.1958 does not survive and has been rendered infructuous in view of such events. SCA/6371/1997 7/12 JUDGMENT The said order dated 18.9.1958 came to be passed under section 11(A) of the Act and the respondent No.1, while exercising powers conferred by the said provisions, recognized the petitioner society as an undertaking in banking industry. In view of the said recognization, provisions under the BIR Act become applicable to the petitioner w.e.f. 18.9.1958. Since then the petitioner did not challenge the said order. For long period of almost 39 years the petitioner never took up any objection against the said declaration and it was only in 1987 that the petitioner challenged the said order / declaration claiming that it was not aware about the said order and only when application No.4 of 1987 came to be filed, that the said order dated 18.9.1958 came to its notice. Ignorance cannot be made base for challenging the order passed before 39 years. Of course, mere delay alone cannot be hurdle in the way for the petitioner to challenge the decision about applicability of the Act as there cannot be estoppel against law. SCA/6371/1997 8/12 JUDGMENT However, if we take a look at the by laws of the petitioner society, it emerges that the petitioner engages itself into work and activities of savings scheme, fixed deposits, issuing pass books and giving loans. These aspects have been noticed by the industrial court in its order and no evidence to contradict the said observations and findings by industrial court is on record of petition. In this regard it is appropriate to take notice of the fact that while considering the objections of the present petitioner, the Industrial Court has taken into account all relevant aspects. It has also taken into account the judgments referred to by the contesting parties. In its order dated 31.3.1997, the Industrial Court has, while considering the submissions of present petitioner, made reference of the by-laws of the petitioner society and has observed that, “But, at the same time, Shri Barot has produced by-laws of the appellant bank and in objectives, it is clearly provided in clause – 4 (6 & 7) that the purpose of this establishment is to do all kind of banking work and further there are SCA/6371/1997 9/12 JUDGMENT savings scheme and fixed deposit also as per the provisions of clause – 29 of the said by-laws and even there is provision for interest and rebate, etc. also. Therefore, it differs from the facts containing the cited order of Industrial Court in appeal (IC) No.32 of 1974. Moreover, the Appellant Bank also issued pass books to consumers and it is regularly maintained. Therefore, in all aspects, the activities of the appellant is of the bank. It may be for limited group or society.” Thus, even upon taking into account the objectives of the petitioner society – as they flow from its by-laws – and upon taking into account the actual sphere and scope of its activities as well as the applicability of 1949 Act, the subject order dated 18.9.1958 does not appear to be wrong and the Industrial Court does not appear to be in error. Thus, it comes out that the petitioner has been engaged in the banking activities, and that therefore, it would be a “cooperative society engaged in banking business.” As noticed earlier, SCA/6371/1997 10/12 JUDGMENT while examining the order of the authority the industrial court has, while hearing the appeal, considered the aforesaid aspects and upon undertaking the said details in account the Industrial Court confirmed the order. It is, thus, not possible to find any fault in the order of Industrial Court and the court has not committed any error of law or jurisdiction so as to warrant any interference in exercise of jurisdiction of Article 227 of the Constitution of India. Further, in view of applicability of 1949 Act, there is no basis or jurisdiction to upset the order dated 18.9.1958 and / or the judgment and order of Industrial Court. Thus, in present case, delay in challenging the order dated 18.9.1958 and / or long period of undisturbed operation of said order are not the only reason for not disturbing the order, but in view of activities of petitioner the order does not call for any interference. Accordingly, the Industrial Court appears to have taken into account the objectives and the nature of the operations / activities of petitioner SCA/6371/1997 11/12 JUDGMENT society and has come to the conclusion, by way of findings of fact, that it was not possible to accept the contention that the petitioner society is not a “bank.” The petitioner has not produced any material to upset or controvert or disprove the said finding and conclusion of the Industrial Court. There does not appear to be any strong reason or justification to interfere with the said conclusion by the Industrial Court, more particularly, in view of the fact that the Reserve Bank of India also has issued licence to the petitioner society and the provisions of the 1949 Act are made applicable to the petitioner society. Thus, on over all consideration of the relevant facts and circumstances as well as the aforesaid factual aspects regarding applicability of the 1949 Act to the petitioner bank and issuance of licence by the Reserve Bank of India in favour of the petitioner society and also in view of the fact that the order of 18.9.1958 was for the first time challenged by the petitioner after 39 years as well as for the reason that the Industrial Court has, SCA/6371/1997 12/12 JUDGMENT after due consideration of relevant aspects rejected the appeal against the said order, this court is of the opinion that there is no reason or justification to interfere with and/or set aside the order of 18.9.1958, after almost 50 years since the date of its issuance, hence, the relief prayed for by the petitioner has, even otherwise, become infructuous and that therefore, on over all consideration, the petition does not deserve to be entertained. Accordingly, present petition is disposed of. Rule discharged. kdc [K.M.Thaker, J.]