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PETITIONER: STATE BANK OF INDIA & ORS.

       Vs.

RESPONDENT: STATE BANK OF INDIA CANTEEN EMPLOYEES’ UNION & ORS.

DATE OF JUDGMENT:       05/05/1998

BENCH: K. VENKATASWAMI, A.P. MISRA

ACT:

HEADNOTE:

JUDGMENT:                          O R D E R      Respondents 1  to 3 herein moved a learned Single Judge of the  Calcutta High  Court for  the issue  of  a  writ  of mandamus directing  the appellants  to forthwith  absorb the members of  the first  respondent-union as  employees of the appellant-bank with  effect from  their respective  dates of joining or  within such  time as  the Court may deem fit and proper and for other consequential directions.      The learned Single judge passed the following order:-      "  The   Court:  having  heard  the      Learned Counsel  for the petitioner      and the  respondent-State  Bank  of      India  it   is  directed  that  the      matter will  come as  application 3      months hence.  A/O by  6 weeks  and      Reply  by   3   weeks   thereafter.      Pendency of  the petition  will not      prevent  the   parties  to  proceed      before the  Tribunal in  the manner      mentioned in the petition. Any step      to  be   taken  by  the  respondent      pursuant to the impugned settlement      will abide  by the  result  of  the      writ petition.  Liberty to  mention      for early  hearing after filling of      affidavit.           All parties to act on a signed      copy of  the minutes  of this order      on the usual undertaking."      Aggrieved by  the above order, respondents 1 to 3 moved the Division  Bench   of that  High Court  and  the  learned Judges of  the Division  Bench withdrew  the case  from  the learned Single  Judge and  heard the  main case itself along with the  appeal filed  against the  interim  order  of  the learned Single Judge.      The learned  Judges accepted  the  case  of  the  first respondent-union and  directed the  appellants to  treat the employees of   the canteens of all the Branches as employees of the  bank. Aggrieved   by  that, the  present appeals are filed by special leave.

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    We have  heard extensively  Mr. Shanti Bhushan, learned senior counsel  for the  appellants, and  Mr.Anindya  Mitra, learned senior counsel for the contesting respondents.      We have  noticed that  at the  instance  of  the  first respondent-union, on  an identical  issue, a  dispute was  a raised espousing  the cause  of its members (workmen) and on failure of settlement the matter was referred to the Central Government  Industrial   Tribunal.  While   the  matter  was pending, respondents  1 to  3 seem  to have  moved the  High Court simultaneously.  The appropriate  way of  disposing of the matter  by the  High Court would have been to direct the parties to  proceed with  the  case  before  the  Industrial Tribunal and  not to permit the union to simultaneously move the High Court. Alternatively the High Court could have kept the matter  pending till the Industrial Tribunal decided the issue by  giving findings on the disputed questions of fact. The Division  Bench itself  has noticed  that the appellant- bank has  not accepted  the material  facts  and  still  the Division Bench,  while exercising jurisdiction under Article 226 of the Constitution of India, gave findings on questions of disputed facts.      Two important  aspects on  which  the  facts  seriously disputed were  that  the  canteen  employees  were  not  the employees of  the bank  as  there  was  no  relationship  of employer and  employee and  there was  no similarity between the canteens  in dispute  and the  canteens run by the bank. The Division  Bench proceeded  on the  assumption  that  the canteen employees  of the  bank and  the canteens run by the bank and  the canteens  now in  question are  similar in all respects. It appears that as a result of bipartite agreement between  the  bank  and  employees  federation  (after  four stages) ultimately  the Bank agreed to take over and run the canteens where  the Branch  is   manned by not less than 100 employees. The  canteens now in question are the canteens in the branches   where  the bank  employees are less than 100. According to  the bank, there are 231 branches in which only 5 employees are there and in 126 branches the staff strength was only  between 6 and 10. According to the learned counsel appearing for  the bank,  the  question  whether  there  was necessity to  run a  canteen in  those  branches  and  other similar questions  should have  been gone  into by  the High Court and  without deciding  such factual  aspect  the  High Court has issued the mandamus as prayed for.      On the  facts, we  are of  the view that the High Court ought not  to have  entertained the  Writ Petition  when the identical issue  between the same parties was pending before the Industrial  Tribunal and that too at the instance of the Writ petitions  before the  High Court. We are told that the matter before the Industrial Tribunal is still pending.      Strong reliance  was placed  on the recent judgments of this Court  in Employers  in Relation  To The  Management of Reserve Bank  of India  vs.  Workmen  (1996  (3)  SCC  267), Parimal Chandra Raha & Others vs. Life Insurance Corporation of India  & Ors.  (1995 (Supp) (2) SCC 611), Associate Banks Officers’ Association  vs. State  Bank of India & Ors. (1998 (1) SCC  428. In  all these cases, the case in M.M.R. Khan & Ors. vs.  Union of  India &  Ors. (1990  (Supp) SCC 191) was referred to,  elaborately  considered  and  explained  to  a certain extent. For appreciating and applying the principles laid down  by this  Court in  these recent  judgments, it is absolutely necessary to have clear and elaborate findings on facts based on materials.      In this circumstances, taking advantage of the pendency of the  identical issue  in Ref. No. 2/92 before the Central Government  Industrial  Tribunal  at  Calcutta,  instead  of

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directing the parties to go before the same Tribunal in this matter as  well, to  avoid delay and in the interest of both the parties,  we direct  the Central  Government  Industrial Tribunal to expedite the hearing of Ref. No. 2/92 and render the Award  within six months. The parties shall avoid taking adjournments. The  party, aggrieved  by  the  Award  of  the Tribunal to  be passed  pursuant to  the direction  as given above, will be at liberty to move this Court.      These appeals  will be listed after the disposal of the Reference by  the Central  Government Industrial Tribunal as aforesaid alongwith the SLP, if any, filed against the Award of the Central Government Industrial Tribunal.