Gujarat High Court
For Approval And Signature vs State Of Gujarat & on 16 February, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/12788/2008 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12788 of 2008
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
EXCEL CROP CARE LTD....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
Appearance:
MRS MAUNA M BHATT, ADVOCATE for the Petitioner(s) No. 1
MR DEEPAK ALORIA AGP for the Respondent(s) No. 1
RULE SERVED BY DS for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 16/02/2017
ORAL JUDGMENT
When the petition is called out and taken up for hearing, learned advocate for the petitioner is not present. Despite service of notice effected by the petitioner in pursuance of the Page 1 HC-NIC Page 1 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT permission granted vide order dated 19.11.2008, no one has entered appearance on behalf of respondent No.2.
2. In present petition, the petitioner company has prayed inter-alia, that:-
"[a] this Hon'ble Court be pleased to issue any appropriate writ, order or direction quashing and setting aside the order dated 10.04.2008 (Ann. 'K') passed by the respondent no.1 under the purported exercise of powers conferred by section 10(1) of the Industrial Disputes Act, 1947;
[b] that pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the effect and implementation of the order dated 10.04.2008 (Ann.'K') passed by the respondent no.1 under the purported exercise of powers conferred by section 10(1) of the Industrial Disputes Act, 1947; [c] Be pleased to pass such other and further orders, as may deem just and proper in the facts and circumstances of the case."
3. So far as factual background is concerned, the petitioner has narrated relevant facts in paragraph Nos. 2 to 15 of the petition. In the said factual background, the petitioner company has challenged the order of reference dated 10.04.2008 whereby appropriate government referred the dispute for adjudication. Copy of the impugned order of reference dated 20.04.2008 is placed on record of this petition at Annexure Page 2 HC-NIC Page 2 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT
- K, Page Nos.73 and 74. On reading the said order of reference, it comes out that appropriate government has referred the dispute related to termination of service of one Mr. Kishorbhai Babubhai Solanki vide order dated 07.08.2001 passed by the petitioner company. The terms of reference read thus:-
"whether said Mr. Kishorbhai Babubhai Solanki is entitled for reinstatement with continuity of service and backwages."
3.1 It appears that according to the petitioner- company, said Mr. Kishorbhai Babubhai Solanki i.e. respondent No.2 was employed as badli worker with the company. The company claims that the company provide work to badli worker as and when work is available on account of absence of permanent workman or if permanent workman avails leave.
3.2 With reference to the said contention of the company that the claimant Mr. Kishorbhai Babubhai Solanki was employed as badli worker and in light of the contention which are raised by Page 3 HC-NIC Page 3 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT the petitioner company against the order of reference passed by appropriate government (which is impugned in present petition), it is necessary to take into account certain factual backdrop which the company has mentioned in the petition:
"2. The brief facts are to the effect that during the period from 1981-89, at the stage of initial set up/ installation of the company's unit at Bhavnagar, the petitioner used to have around 650 permanent workmen. Most of the permanent workmen were the members of Excel Karmachari Union, a recognized union. It so happened in the relevant period from 1981-89 that besides the permanent workmen, the petitioner used to take in employment temporary/casual/voucher workmen at random. Over a period of time, therefore, during the relevant period from 1981-89, a large number of workmen came to have work and the petitioner company also used to engage such workmen depending on its exigency of work. While engaging temporary/casual/voucher workmen, the principle of seniority was never followed, since for example one workman reported for work in January 1981 and worked for a few days and thereafter did not report for work for over a very time and his seniority vis-a-vis such other workmen on the basis of his joining the employment in January 1981 was, therefore, not considered for allotment of temporary/casual work. Whoever was available on a particular day was taken on job and provided such job. If the total number of such temporary/casual/voucher workmen were to be totaled up for the period from 1981-89, it happened that around 1400 such workmen were temporarily/casually employed depending on the exigency of the work and the availability of the workmen concerned.
5. In the above background, therefore, with a view to find out an amicable settlement, the petitioner on one hand and the recognized union on the other hand had protracted negotiations to settle the matter and in the course of negotiation ultimately, a rationalized and logical formula was arrived at. In the industrial disputes parlance "240 days" has acquired some significance, but it also contemplates that any workman should have worked atleast for 240 days in one year only. The petitioner and the respondent no.1 recognised union, therefore, while keeping the sacrosanct figure of "240 days" evolved a formula extending the period of one year to nine years. Therefore, it was so agreed that those of such workmen who might have put in 240 days of Page 4 HC-NIC Page 4 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT work not in one year but over a period of 9 years should be segregated and in this manner determined the number of days put in by all the workmen concerned over a period of 9 years instead of one year only, rather than trying to resolve the dispute, based on the technical principle of seniority which was likely to cause more heart-burning amongst very large number of workmen concerned.
6. Under the above peculiar circumstances, the principle of resolving the issues based on seniority only was not found advisable nor feasible. Large number of permanent workmen in the petitioner also gave backing to the said settlement arrived at on the above basis. In view of this peculiar scenario, a settlement was arrived at between the petitioner and the recognized union. The said settlement envisaged preparation of two lists. First list termed as Ann. A was with regard to those workmen who had put in atleast 240 days of total work during the period from 1981-89 and the second list termed as Ann. B gave details with regard to lump sum ex gratia amount payable to the left out workmen, who had not worked even for 240 days.
7. It was further envisaged in the settlement that from the statement at Ann. A to the said settlement workmen at Sr.No.1 to 30 will be employed by the petitioner as permanent workmen provided they are medically found fit and have not crossed the age of 60. The workmen at Sr. No.31 onwards shall be treated as badli workmen to be provided work in the absence of permanent unskilled workmen. These badli workmen were to be treated at par for benefit with the permanent workmen of the petitioner except providing uniform, shoes, gift, ex gratia payment or anything which the petitioner gave of its own and not as a part of statutory requirement. Further, preference in employment was to be given to those badli workers. The said settlement dated 18-6-1992 along with the annexure was filed before the Hon'ble Tribunal by a joint application of the petitioner and the respondent no.1 union. The application also stated that the settlement should be given wide publicity so that the interests of all concerned are protected. A copy of the settlement and annexures which was exhibited at Exh.3, is hereto annexed and marked as Ann. 'A' to this petition.
8. The petitioner submits that after hearing all concerned, the Hon'ble Industrial Tribunal observed that the settlement was just, fair and bonafide and in the interest of workmen, under its award dated 11-10-2002. However, without any reason, the Hon'ble Industrial Tribunal substituted the list at Ann.A to the settlement and held that the benefit of the settlement should be given to 135 workmen instead of 96 workmen as per the revised list submitted earlier. By the said award, the Page 5 HC-NIC Page 5 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT Hon'ble Industrial Tribunal also held that the lump sum ex gratia amount should be doubled and thereby also altered Ann.B to the settlement."
3.3 The petitioner has made reference of certain proceeding which was pending before the learned Tribunal viz. Reference (IT) No.2 of 1991. In the said reference case, the learned Tribunal was required to adjudicate and decide below mentioned two issues (which constitute terms of reference):-
"(i) Whether a list of workmen who had worked in the past and are working in the company as at present as temporary / voucher should or should not be prepared on the basis of seniority based on their respective date of joining in the company?
(ii) Whether such workmen should or should not be compensated if they are made permanent on the basis of seniority?"
3.4 In this backdrop, the petitioner company has challenged order of reference dated 10.4.2008 passed by appropriate government. 3.5 According to the petitioner company, the appropriate government has referred the dispute/claim for permanency and the claimant's seniority for allotment of work and that the appropriate government is not justified in Page 6 HC-NIC Page 6 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT passing impugned order dated 10.4.2008 because the claim of the claimants is covered by the settlement which came to be arrived at between the company and the union/workman in reference No.2 of 1991 and also because the machinery/ committee to resolve the disputes of badli workers is already constituted and the said committee examined the dispute and resolves the grievance of the badli worker.
The said entire submission and sole ground of attack against the order of reference is the understanding that dispute about permanency and allotment of work as per seniority is referred for adjudication.
However, the fact is otherwise and that is revealed from the terms of reference. 3.6 If the dispute referred by the claimant was, in any manner, related to status of the claimant and/or demand for allotment of work according to the schedule of seniority or such other dispute connected in any manner with the subject of Page 7 HC-NIC Page 7 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT permanency of badli worker, then, the contention of the petitioner company against the order of reference viz. that in view of settlement between the union and the company in reference No.2 of 1991, the order of reference could not have been made and order of reference is not justified and consequently, the reference would not be maintainable, could have been entertained and considered by this Court.
However, when the order of reference dated 10.4.2008 is examined, it comes out that the dispute which is referred by appropriate government is altogether different, inasmuch as the claimant appears to have approached the appropriate government with the dispute that the company terminated his service w.e.f. 17.8.2001 and that therefore, he should be reinstated in service with consequential benefits.
The appropriate government considered the said demand and dispute raised by the concerned workman and thereafter, passed order of reference dated 10.4.2008 with above quoted terms of Page 8 HC-NIC Page 8 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT reference.
3.7 It is pertinent that the subject of claimant's termination from service and/or grievance with regard to termination of claimant's service is different and not connected with the dispute related to permanency in service or regularization in service of badli worker. 3.8 Under the circumstances, the contention that in view of the settlement arrived at in Reference No.2 of 1991, appropriate government could not and should not have passed the order of reference dated 10.4..1998, cannot be accepted.
4. In this view of the matter, Mr. Bhatt, learned Senior Counsel for the petitioner put forward another/alternative contention viz. that the date on which the claimant raised the allegation and dispute about alleged termination on and from 17.8.2001, the company had not terminated the service of the claimant and in Page 9 HC-NIC Page 9 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT 2001 and even thereafter, the claimant continued in service with the company and he was performing duties with the company and that therefore, there was neither any base nor any cause for raising any dispute much less for order of reference referring the dispute about alleged termination of the claimant when his service was not terminated by the company.
Mr. Bhatt, learned Senior Counsel, also opposed the order of reference on the ground of inordinate delay in raising the dispute. He submitted that according to the claimant's allegation, his service came to be allegedly terminated in August 2001 whereas he approached appropriate government with industrial dispute in 2008 and that therefore, such stale claim and dispute should not have been referred.
5. There could be substance in the contention of the petitioner company. The petitioner company might be right in its claim that in August 2001 or at any point thereafter it had never Page 10 HC-NIC Page 10 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT terminated the service of the claimant and that therefore, any case for raising dispute never arose. However, the said contention cannot be considered and decided by this Court in writ jurisdiction. The said contention involves several disputed questions of fact, which would necessitate oral and documentary evidence for resolution and that process can be undertaken only by labour Court.
The contention of the petitioner company against the order of reference on the ground of delay also may have some substance. However, said contentions are such which cannot be examined much less decided by appropriate government. The said contentions are such which fall within domain of learned Labour Court and can be decided by learned Labour Court.
Of course, the petitioner company can raise objection against order of reference before learned Labour Court on the ground that the claimant's service has never been terminated by the company and that therefore, there is no cause Page 11 HC-NIC Page 11 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT of action and the case or dispute or grievance does not arise and that therefore, order of reference is bad in law and unsustainable.
The company can also oppose the order of reference on the ground of delay and claim that such stale dispute cannot be raised and entertained.
If such contentions and objections are raised, the learned Labour Court would decide the same in accordance with law.
However, this proceedings are not appropriate remedy to decide such contentions. 5.1 In this regard, a profitable reference may be had to the observations by Hon'ble Apex Court in case of Telco Convoy Drivers Mazdoor Sangh & Anr. v. State of Bihar & Ors. [AIR 1989 SC 1565] wherein Hon'ble Apex Court observed, inter alia, that:-
"12. It is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words, unless those who are raising the disputes are work- men, there cannot be any existence of industrial dispute within the meaning of the term as defined in section 2(k) of the Act. It is urged that in order to form an opinion as to whether an industrial Page 12 HC-NIC Page 12 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT dispute exists or is apprehended, one of the factors that has to be considered by the Government is whether the persons who are raising the disputes are workmen or not within the meaning of the definition as contained in section 2(k) of the Act.
13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasijudicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by section 10 of the Act. See Ram Avtar Sharma v. State of Haryana, [1985] 3 SCR 686; M.P. Irrigation Kararnchari Sangh v. The State of M.P., [1985] 2 SCR 1019 and Shambhu Nath Goyal v. Bank of Baroda, Jullundur, [1978] 2 SCR 793.
14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is 808 whether the person raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh's case (supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and that to allow the Government to do so would be to render section 10 and section 12(5) of the Act nugatory.
15. We are, therefore, of the view that the State Government, which is the appropriate Government, was not justified in adjudicating the dispute, namely, whether the convoy drivers are workmen or employees of TELCO or not and, accordingly, the impugned orders of the Deputy Labour Commissioner acting on behalf of the Government and that of the Government itself cannot be sustained.
16. It has been already stated that we had given one more chance to the Government to reconsider the matter ,red the Government after reconsideration has come to the same conclusion that the convoy drivers are not workmen of TELCO thereby adjudicating the dispute itself. After having considered the facts and Page 13 HC-NIC Page 13 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT circumstances of the case and having given our best consideration in the matter, we are of the view that the dispute should be adjudicated by the Industrial Tribunal and, as the Government has persistently declined to make a reference under section 10(1) of the Act, we think we should direct the Government to make such a reference. In several instances this Court had to direct the Government to make a reference under section 10(1) when the Government had declined to make such a reference and this Court was of the view that such a reference should have been made. See Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamil Nnadu, [1983] 1 LLJ 460; Ram Avtar Sharma v. State of Haryana, [1985] 3 SCR 686; M.P. Irrigation Karamchari Sangh v. The State of M.P. [1985] 2 SCR 1019 and Nirmal Singh v. State of Punjab, [1984] 2 LLJ396."
6. So as to support his submission that the service of the claimant has not been terminated and actually the claimant is in service with the company and that therefore, the reference is unjustified and the order of reference is based on non-existing fact, learned advocate for the petitioner company relied on affidavit dated 16.2.2017 wherein the petitioner company has averred and stated that:-
"1. I am filing the present additional affidavit for the purpose of bringing on record that the Respondent No.2 being a badli worker was not terminated but on the contrary, the Respondent No.2 had worked for Petitioner for the days as enumerated in the tabular chart which is annexed hereto and marked as Annexure-A."
6.1 Alongwith the affidavit, the company has annexed a statement wherein the details of the Page 14 HC-NIC Page 14 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT attendance of the claimant for the period after 17.8.2001 is mentioned. The petitioner company has mentioned details of the claimant's attendance for the year 2001, 2008, 2009 and 2010 and it is sought to be asserted that even during 2010, the claimant was in service with the company and that therefore, the allegation that his service was terminated in August, 2001 is not correct and therefore, there is no cause for making order of reference.
As mentioned above, the said details are matter of evidence and such contentions can be raised by the company before the learned Labour Court, however, it is not within the jurisdiction of conciliation officer or appropriate government to entertain such contention and/or decide such contentions and that therefore, appropriate government cannot refuse and in present case, it could not have refused to refer the dispute.
In light of the facts of the case and in light of the observations by Apex Court, the decision and order of reference by the Page 15 HC-NIC Page 15 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT appropriate government cannot be faulted and disturbed at this stage. The said aspects can be and must be examined by learned Labour Court and appropriate government or the conciliation officer cannot exercise such jurisdiction and cannot reject, at threshold, the request for reference on such ground. This aspect becomes clear from above quoted observations by Hon'ble Apex Court.
7. Therefore, with the clarification that the company may raise such contentions before the learned Labour Court who will decide the same and pass appropriate order with regard to the order of reference and maintainability of the reference proceedings, this petition deserves to be disposed of.
8. Therefore, following order is passed:-
[a] In light of the decision by Hon'ble Apex Court in case of Telco Convoy Drivers Mazdoor Sangh & Anr. (supra), the petition is not Page 16 HC-NIC Page 16 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT entertained at this stage. Since the petitioner company has approached this Court against order of reference whereby the appropriate government has referred the dispute about the alleged termination of the claimant workman, the petition does not deserve to be entertained at this stage and appropriate government's decision cannot be faulted at this stage. The contentions raised by the petitioner company against the order of reference are such which can be decided by learned Labour Court and not by appropriate government or by this Court in writ proceedings.
Therefore, on the said limit ground, the petition is disposed of.
[b] It is clarified that this Court has not entered into the merits of the allegations of the claimant or contentions of the company. It is also clarified that it will be open to the company to raise all such contentions as available in law against maintainability of the order of reference as well as the reference Page 17 HC-NIC Page 17 of 18 Created On Sun Aug 13 16:41:46 IST 2017 C/SCA/12788/2008 JUDGMENT proceedings.
With aforesaid observations and clarifications, present petition is disposed of.
Rule is discharged.
Sd/-
(K.M.THAKER, J.) kdc Page 18 HC-NIC Page 18 of 18 Created On Sun Aug 13 16:41:46 IST 2017