-Report by A.K. Sooraj
The Delhi High Court in the case VIJAY KUMAR JHAMB vs. UNION OF INDIA held that the respondent overstepped its jurisdiction in opining that the bank clerk with 20 years of service was not entitled to any pension under the Pension Rules of the bank.
The petitioner joined the services of the State Bank of India as a clerk on April 10, 1981, and was removed from service on the basis of an order dated November 24, 2004, pursuant to ex parte disciplinary proceedings held against him. The petitioner requested the release of his pension from the bank because he had more than 20 years of service and claimed that because he had submitted his retirement on March 10, 2004, he was entitled to it. After not hearing back, the petitioner brought a complaint before the Assistant Labour Commissioner on behalf of the All India Bank Staff Association. The bank asserted during the conciliation proceeding that the petitioner was not entitled to a pension under the applicable Pension Rules. The respondent issued the challenged order denying to refer the petitioner’s claim for adjudication after receiving a failure report from the Assistant Labour Commissioner serving as the Conciliation Officer due to the bank’s opposition to the petitioner’s claim. Being aggrieved, the petitioner approached this Court by way of the present petition.
The petitioner’s learned counsel argued that the impugned order was completely without jurisdiction since, according to Section 12(5) of the I.D. Act, the appropriate government lacked the authority to decide on the opposing positions expressed by the parties. He argued that the Conciliation Officer’s and the Appropriate Government’s jurisdictions were extremely constrained, and all that they needed to take into account was whether or not there was a dispute between the parties. A disagreement can only be completely frivolous before the government decides not to refer to it. It was the respondent’s responsibility to refer the case to the Industrial Tribunal in the current instance after it became clear that the bank was refusing to consider the petitioner’s demand for a pension. According to I.D. Act Section 12(5), the respondent was not permitted to perform an adjudicative duty. Therefore, he requested that the contested order be reversed and that the respondent immediately refer the petitioner’s claim to the Industrial Tribunal.
Mr. Gogna, experienced counsel for the respondent, attempted to justify the assailed order by arguing that the appropriate government was required to determine whether a prima facie case was made out for adjudication prior to making a reference under the Industrial Disputes Act. In exercising its authority under Section 12(5) of the I.D. Act, he contends that the appropriate government is not compelled to refer to every issue; rather, it is expected to first determine whether a reference is warranted or not. The government is not compelled to make any references unless it is convinced that the claim has to be submitted for adjudication. Nevertheless, it had to give a justification for not referring the case to the Industrial Tribunal for resolution. As a result, he prayed that the petition be dismissed.
The judgement was given by considering the facts of the present case with the decision given in the case of M.P. Irrigation Karamchari Sangh Vs. State of M.P. and Another, (1985) 2 SCC 103. It was held that the respondent had overstepped its jurisdiction in opining that the petitioner was not entitled to any pension under the Pension Rules of the bank. The respondent has failed to appreciate that it was the petitioner’s specific case that he had voluntarily resigned from service with effect from May 1, 2004, but was thereafter malafidely removed from service on November 24, 2004. Additionally, despite being terminated, he would still be eligible for a pension because he served for more than 20 years. The respondent could not have simply rejected the petitioner’s position on the basis of a prima facie case without giving him the chance to present evidence before the learned tribunal. For the aforesaid reasons, the impugned order, being wholly unsustainable, was accordingly set aside. The matter was returned to the respondent, who will immediately refer the petitioner’s disputes to the appropriate industrial adjudicator so that a decision can be made without further delay.
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