Himachal Pradesh High Court
The Manager/Operational Head Gvk vs Presiding Officer on 21 March, 2022
Bench: Sabina, Satyen Vaidya
REPORTABLE/NON REPORTABLE
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
ON THE 21st DAY OF MARCH, 2022
BEFORE
.
HON'BLE MS. JUSTICE SABINA
&
HON'BLE MR. JUSTICE SATYEN VAIDYA
CIVIL WRIT PETITION No. 506 of 2022 ALONG WITH CIVIL
WRIT PETITION Nos. 507, 508 and 509 of 2022.
Between:-
1. CIVIL WRIT PETITION NO. 506 OF 2022.
THE MANAGER/OPERATIONAL HEAD GVK, 108
AMBULANCE SEWA, VILLAGE DHARAMPUR,
SHIMLA-CHANDIGARH HIGHWAY, DISTRICT
SOLAN, H.P.
....PETITIONER.
(BY MR. K.D. SHREEDHAR, SENIOR ADVOCATE
WITH MR. SAMEER THAKUR, ADVOCATE)
AND
108 AMBULANCE SEWA, CONTRACT WORKERS
UNION (INTUC), RAJIV BHAWAN NEAR LIFT,
THE MALL SHIMLA - 171001, H.P. THROUGH
ITS CHAIRMAN.
....RESPONDENT.
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...2...
( BY MR. V.D. KHIDTTA, ADVOCATE)
.
2. CIVIL WRIT PETITION NO. 507 OF 2022.
THE MANAGER/OPERATIONAL HEAD GVK, 108
AMBULANCE SEWA, VILLAGE DHARAMPUR,
SHIMLA-CHANDIGARH HIGHWAY, DISTRICT
SOLAN, H.P.
....PETITIONER.
(BY MR. K.D. SHREEDHAR, SENIOR ADVOCATE
WITH MR. SAMEER THAKUR, ADVOCATE)
AND
1. 108 AMBULANCE SEWA, CONTRACT WORKERS
UNION (INTUC), RAJIV BHAWAN NEAR LIFT,
THE MALL SHIMLA - 171001, H.P. THROUGH
ITS CHAIRMAN.
....RESPONDENT.
( BY MR. V.D. KHIDTTA, ADVOCATE)
2. LABOUR COMMISSIONER, DEPARTMENT OF
LABOUR AND EMPLOYMENT OF H.P.,
SHIMLA.
...RESPONDENT.
3. CIVIL WRIT PETITION NO. 508 OF 2022.
THE MANAGER/OPERATIONAL HEAD GVK, 108
AMBULANCE SEWA, VILLAGE DHARAMPUR,
SHIMLA-CHANDIGARH HIGHWAY, DISTRICT
SOLAN, H.P.
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...3...
....PETITIONER.
.
(BY MR. K.D. SHREEDHAR, SENIOR ADVOCATE
WITH MR. SAMEER THAKUR, ADVOCATE)
AND
108 AMBULANCE SEWA, CONTRACT WORKERS
UNION (INTUC), RAJIV BHAWAN NEAR LIFT,
THE MALL SHIMLA - 171001, H.P. THROUGH
ITS CHAIRMAN. r ....RESPONDENT.
( BY MR. V.D. KHIDTTA, ADVOCATE)
4. CIVIL WRIT PETITION NO. 509 OF 2022.
THE MANAGER/OPERATIONAL HEAD GVK, 108
AMBULANCE SEWA, VILLAGE DHARAMPUR,
SHIMLA-CHANDIGARH HIGHWAY, DISTRICT
SOLAN, H.P.
....PETITIONER.
(BY MR. K.D. SHREEDHAR, SENIOR ADVOCATE
WITH MR. SAMEER THAKUR, ADVOCATE)
AND
108 AMBULANCE SEWA, CONTRACT WORKERS
UNION (INTUC), RAJIV BHAWAN NEAR LIFT,
THE MALL SHIMLA - 171001, H.P. THROUGH
ITS CHAIRMAN.
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...4...
....RESPONDENT.
.
( BY MR. V.D. KHIDTTA, ADVOCATE)
RESERVED ON: 15th MARCH, 2022.
DECIDED ON : 21st MARCH, 2022.
These petitions coming on for orders this day,
Hon'ble Mr. Justice Satyen Vaidya, passed the following:-
ORDER
All these petitions are being decided by a common judgment as common question of law and facts are involved.
For the sake of convenience, the parties, hereafter, shall be referred to in the same manner as were before the Himachal Pradesh Industrial Tribunal-cum-Labour Court, Shimla (for short "the Tribunal").
2. Brief facts, forming backdrop of instant petitions, are as under:
2.1 Petitioner is an "Union" formed by the employees of the respondent and is espousing the cause of some of its members before the Tribunal by ::: Downloaded on - 22/03/2022 20:11:00 :::CIS ...5...
filing four separate petitions under Section 33-A of the .
Industrial Disputes Act, 1947 (for short," the Act").
2.2 The grievance of the petitioner is that the respondent, during the pendency of industrial dispute i.e., Reference Petition No.65/2016 before the Tribunal, has wrongfully dismissed some of its members from service (hereinafter referred to as "workmen") in violation of provisions of Section 33 (2) (b) of the Act.
Hence, relief to set aside dismissal orders passed against workmen with directions to allow them to continue to work on originally held designations with all consequential benefits has been sought against the respondent. Cost of litigation and damages have also been sought.
2.3 Details of petitions filed before the Tribunal are as under:
Sr. Case Name of Date of Date of
No. No. workmen Dismissal filing
1. 42/2021 Manoj 3.3.2021 9.4.202
1
2. 44/2021 Vikas Kaul 1.9.2020 4.3.202
1
3. 116/202 Rahul Yadav 3.3.2021 9.4.202
1 Karan Singh 1
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4. 35/2021 Dinesh 20.2.2021 4.3.202
Gautam 1
.
2.4 The respondent is contesting the above noted
petition on the grounds that the petitions were not maintainable because the pending dispute under reference No. 65/2016 pertained to the employees of M/s Addecco Flexione Workforce Solutions and the demands of their workers had been wrongly raised before the respondent. Petitioner or workmen were strangers of pending dispute. Workmen have been dismissed for their gross misconduct after holding separate inquiries against them 2.5 During the pendency of the aforesaid petitions, the petitioner filed applications under Section 10(4) and Section 2-B of the Act read with Section 151 of the Code of Civil Procedure seeking interim relief in the form of stay of termination orders issued against the workmen.
These applications have also been contested by the respondents inter alia on the ground of contest raised ::: Downloaded on - 22/03/2022 20:11:00 :::CIS ...7...
in petitions under section 33-A of the Act with additional .
ground that the prayer in interim, if granted, would amount to granting of prayer in the main petition, which was impermissible in law.
2.6. The learned Tribunal has allowed all the applications for interim relief vide impugned orders dated 30th November, 2021. The operation and enforcement of dismissal orders issued against the workmen have been ordered not to remain in vogue till the disposal of the main petitions and such dismissal orders have been stayed.
3. Respondent has challenged aforesaid orders, dated 30.11.2021, by way of instant petitions on the grounds that the learned Tribunal, without affording opportunity of leading evidence to the parties, could not pass the impugned orders lawfully. Without such exercise, the learned tribunal could not have arrived at the conclusion regarding existence of connection between the subject matter of the reference petition No. 65 of 2016 and the dismissal orders issued against the workmen. It is ::: Downloaded on - 22/03/2022 20:11:00 :::CIS ...8...
further alleged that the learned Tribunal, in the absence of .
evidence before it, could not adjudicate on the question of fact regarding prior approval of competent authority before the dismissal of the workmen and payment of one-month wages to them, in accordance with the provisions of Section 33 (2)(b) of the Act. Further contention of the respondent is that the Industrial Dispute in reference petition No. 65 of 2016 was pertaining to M/s Addecco Flexione Workforce Solutions and as such there was no cause for the petitioner to involve respondent in proceedings under Section 33-A of the Act. As per respondent, the services of the workmen were terminated owing to their misconduct and after finding them guilty in departmental inquiry. Jurisdiction of the learned Tribunal to pass interim orders in proceedings under Section 33-A of the Act has also been challenged. Alternatively, it has been submitted that impugned orders passed by learned Tribunal amounts to grant of relief as claimed in main petitions, which was not permissible in law.
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4. We have heard the learned counsel appearing for .
the parties and have also gone through the records.
5. The pendency of reference petition No. 65 of 2016 is not in dispute. The said proceedings were initiated on the reference dated 13.5.2016 made by the "Appropriate Government" in following terms : -
"Whether demands raised by the Chairman, HP 108 Contract Workers Union (INTUC), Rajiv Bhawan near Lift, The Mall Shimla HP vide demand notice dated 6.1.2014 and complaint letter nil (received on 21.3.2014) (copies enclosed) for fulfillment by the Manager 108 Ambulance Sewa JP Building Village Anji Barog Bye Pass Road District Solan HP is legal and justified? If yes, what quantum of financial and other benefits the aggrieved contract workers are entitled to form the above employer/management."
6. The demand notice and complaint, dated 6.1.2014 and 21.03.2014 respectively, that culminated into issuance of aforesaid reference, were initiated by none other than the petitioner. That being so, the contention of the respondent with reference to M/s Addecco Flexione Workforce Solutions is ::: Downloaded on - 22/03/2022 20:11:00 :::CIS ...10...
rendered meaningless at least for prima facie assessment of the .
respective stands of the parties.
7. We also do not find any substance in the contention of the respondent that the learned Tribunal could not have arrived at a conclusion regarding violation of Section 33(2)(b) of the Act, without affording the parties opportunity to lead evidence for the reason that, in the given facts of the cases before learned Tribunal, the following facts were not disputed:
(i) Pendency of Industrial dispute for adjudication between the parties;
(ii) discharged or punishment to workmen, by dismissal for misconduct unconnected with the pending Industrial Dispute;
(iii) non-payment of wages for one month to workmen;
(iv) absence of application by employer to the authority, adjudicating upon the Industrial Dispute, seeking approval of the its action.
8. In the instant case, the pendency of reference petition No. 65 of 2016 was admitted and required no further ::: Downloaded on - 22/03/2022 20:11:00 :::CIS ...11...
proof. The pending Industrial Dispute under reference petition .
No. 65 of 2016 was between the same parties, as evident from the reference made by the Appropriate Government. Further, the respondent has not placed on record any material to show that it had paid the concerned workmen one-month wages and had also sought approval of the Tribunal before issuing orders of dismissal against the workmen. In these circumstances, no further evidence was required by learned tribunal before deciding the applications for interim reliefs.
9. The jurisdiction of the learned Tribunal to pass interim orders, during the continuance of proceedings before it under Section 33-A of the Act, has already been held to exist by a Division Bench of this Court (in which one of us, Satyen Vaidya, J., was a member) in following terms, while deciding CWP No. 4970 of 2021, titled as M/s Wipro Enterprises Private Ltd. vs. Presiding Officer, the Industrial Tribunal-cum- Labour Court & Anr., on 15.09.2021: -
"28. From the above noticed exposition of law, it is clear that there cannot be an absolute embargo on the power of the adjudicatory authorities under the ::: Downloaded on - 22/03/2022 20:11:00 :::CIS ...12...
Act to pass interim order in appropriate cases while .
dealing with the complaint under Section 33A of the Act. It goes without saying that the relief which is finally claimed in complaint under Section 33A cannot be granted by way of interim order. However, in order to maintain equities and to protect the interest of justice, the adjudicatory authorities can pass such interim orders as may be deemed necessary to maintain the balance."
10. Thus, the jurisdiction to pass interim orders by the Tribunal is circumscribed by a caveat that main relief as claimed in application under section 33A of the Act cannot be granted by way of interim relief. The intent of vesting Tribunal with jurisdiction to pass interim orders is to maintain equities between the parties and not to put either of them in disadvantageous position.
11. The admitted case of the parties is that the workmen had already been dismissed from service and in fact on this cause of action the applications under section 33A of the Act were preferred before the learned Tribunal. Petitioner has sought the main relief to set aside the dismissal of workmen, ::: Downloaded on - 22/03/2022 20:11:00 :::CIS ...13...
meaning thereby that workmen would get reinstatement in .
service as consequential relief only, in case their main relief was allowed. By way of impugned orders, learned Tribunal has granted the interim relief in the nature, which could be granted in the main petition.
12. Once the workmen were dismissed from their respective services, they could not be presumed to have continued performing their jobs under the respondent, unless specifically so pleaded or otherwise brought on record. The workmen in the instant cases were dismissed on various dated i.e. 1.9.2020, 20.2.2021 and 3.3.2021 and implementation of orders impugned in present petitions before this Court shall amount to putting the clock back, which is not permissible in law.
13. In view of the above discussion, we find merit in these petitions and the same are allowed. Interim orders dated 29.11.2021 passed by learned Tribunal in Case Nos. 42/2021, 44/2021,116/2021 and 35/2021 are set aside. These petitions are ::: Downloaded on - 22/03/2022 20:11:00 :::CIS ...14...
accordingly disposed of so also pending miscellaneous .
applications, if any.
(Sabina)
Judge
r to (Satyen Vaidya)
Judge
March 21st , 2022
(Jai)
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