Gujarat High Court
Gujarat vs State on 3 May, 2012
Author: Ks Jhaveri
Bench: Ks Jhaveri
Gujarat High Court Case Information System
Print
SCA/1900/2012 8/ 8 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1900 of 2012
=========================================================
GUJARAT
RAJYA KAMDAR SENA - Petitioner(s)
Versus
STATE
OF GUJARAT THRO THE SECRETARY & 2 - Respondent(s)
=========================================================
Appearance
:
MR
P C CHAUDHARI for
Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) :
1,
NOTICE SERVED for Respondent(s) : 1 - 3.
MR. K.M.
PATEL, LD. SENIOR ADVOCATE WITH MR.VARUN K.PATEL for
Respondent(s):3.
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 03/05/2012
ORAL
ORDER
1. By way of this petition, the petitioner has prayed for following reliefs:-
a.
your Lordships be pleased to issue writ of mandamus / certiorari or appropriate writ order, direction, directing that the order dt. 03.11.2010 passed by the respondent authority is illegal, improper and arbitrary and contrary to the provisions of Industrial Dispute Act, 1947.
b.
your Lordships be pleased to direct the Respondent No.1 and 2 admit the said dispute into conciliation process and be further pleased to direct the Respondent authority to start the conciliation process.
c.
Your lordships be further pleased to direct if at all the conciliation proceedings fails, then the said dispute is required to be referred to the concerned Industrial Tribunal/Labour Court as early as possible.
d.
xxxx"
2. The short facts leading to filing of this petition are that the petitioner is the Registered Trade union. The workmen of the petitioner union were working with the respondent No.3-Company. Earlier the petitioner union has raised two industrial disputes against the present respondent No.3 being IDC No. 14 of 2010 and IDC No. 21 of 2012. The respondents have filed their counter reply to the said disputes /demands raised by the petitioner Union. The petitioner Union has also given a statement of justification in support of the demand raised by the Union.
2.1. Thereafter, the present respondent No.2 by letter dated 19.10.2010 has decided not to admit the said dispute in conciliation proceedings. However, the respondent No.2 has given an opportunity to the petitioner to reply the letter within 10 days. Pursuant to same, the petitioner has filed written submission on 25.10.2010. Thereafter, respondent No.2 vide letter dated. 03.11.2010 again decided not to admit the said demands into conciliation proceedings. Hence, this petition.
3. Learned counsel for the petitioner has contended that the order dated 3rd November, 2011 passed by the respondent-Authority is contrary to well settled legal position and the same is passed contrary to law laid down in the case of Thakor Nagibhai Bhailal and IPCl now amalgamated with Reliance Ind. Ltd. and Ors, reported in 2011-II-LLJ- 182(Guj). He further contended that the authority who has passed the order has no jurisdiction to decline the admission of conciliation proceedings.
4. Learned senior counsel appearing for the respondent No.3 contended that before filing of this petition, the petitioner has also raised the dispute on 17th May, 2010 against the alleged termination dated 30.11.2008. Thereafter, they had raised another dispute on 11th June, 2010 for getting benefit of continuity of service and backwages. They have filed several references in the same matter which are pending before the concerned Courts.
5. He further contended that after passing of the order of dismissal on 15th April, 2009, the workmen filed references, which are pending before the concerned Court. He submitted that for approval of the termination order, references are also pending before the Industrial Court. Thus, in all three references are pending before the Competent Court which have been filed by the petitioner-union. In that view of the matter, the Conciliation Officer has rightly rejecting the admission of conciliation proceedings.
6. In support of of his contention, he relied upon the decision of the Apex Court in the case of Feroz Din and Ors. Vs. State of West Bengal, reported AIR 1960 SC 363. More particularly paragraph 17, 20 and 21, which reads as under:-
17.The Act therefore treats strikes and lock-outs on the same basis; it treats one as the counterpart of the other. A strike is a weapon of the workers while a lock-out that of the employer. A strike does not, of course, contemplate the severance of the relation of employer and employed; it would be strange in these circumstances if a lock-out did so.
20.By an amendment made on October 2, 1953, certain provisions have been introduced into the Act which would show clearly that a lock-out as defined in s. 2(1), which section has been left unaltered by the amendment, was never intended to include a discharge of 329 workmen.
We refer first to s.2(oo) by which a new definition was introduced in the Act which, so far as is necessary for the present purpose, is in these words:
Retrenchment means the termination by the employer of the service of a workman for any reason whatsoever otherwise than as a punishment inflicted by way of disciplinary action. If lock-out includes a discharge, then retrenchment as defined in s.2(oo)would also clearly be a lock-out. Obviously, if that were so, then retrenchment would not have been separately defined. Again, Under s.25 F, also introduced into the Act by the amendment, a workman may be retrenched by paying him wages for a month, the compensation provided, and on notice to the Government. If retrenchment was a form of lockout, then there would clearly be a conflict between ss. 22 and 23 on the one hand and s.25F on the other. Section 2(oo) and s. 25F were, no doubt, not in the Act at the date of the notices with which we are concerned, but since s.2(1) was not amended it must be taken that its meaning remained after the amendment what it was before. Since the amendment made it clear that s.2(1)did not include a retrenchment, it follows that that definition did not include a retrenchment prior to the amendment. If it did not then include a retrenchment, neither could it include a discharge, for, plainly, a retrenchment is but one form of discharge.
21.It, therefore, seems to us that the words "refusal by an employer to continue to employ any number of persons employed by him"
in s.2(1)do not include the discharge of an employee. We feel no difficulty in taking this view, for it does not seem to us that the words "refusal to continue to employ" in s. 2(1)plainly include a discharge. These words have to be read with the rest of the definition and also the word lock-out. The other parts of the definition contemplate no severance of the relation of employer and employed. The word " lock-out", as stated in the Presidency Jute Mills Co's case (1), in its dictionary sense means refusal on the part of an employer to furnish work to his operatives except on conditions to (1)[1952]L.A.C.62.330 be accepted by the latter collectively. Therefore, in our opinion, the rules of interpretation do not prevent us from giving to the words used in the definition the meaning "a refusal by the employer to allow any number of persons employed by him to attend to their duties without effecting a termination of service as was done in the Presidency Jute Mills Co's case(1), which would avoid one part of the Act coming in conflict with another.
7. He further contended that present petitioner has earlier also filed Special Civil Application No. 3912 of 2007 before this Court against the show cause notice for prosecution, which was dismissed by judgement and order dated 20.10.2008.
8. Learned AGP appearing for the state supported the order of the Conciliation Officer, and submitted that the Authority has given complete reasons for rejecting the admission of conciliation proceedings, since no dispute was present.
9. I have heard learned counsel appearing for the respective parties and perused the material on record. From the record it seems that the dispute has arisen right from 2008 and different references are pending for alleged termination as well as order of dismissal of the concerned workmen. It is clear from the record that in spite of the order dated 16.04.2009, issued by the Government, whereby the Government has prohibited the strike, the workmen did not stop the strike and also did not resume their duties. Therefore, the services of the workmen were terminated by the management.
10. It is also required to be noted that against the said termination order, references have been filed before the concerned Court, which are pending before the concerned Courts. The Conciliation officer has found that there is no dispute between the management and the Union. The dispute is between the concerned individual workmen with the management against the oral termination, order of dismissal and the approval application for which three different proceedings have been filed and which are pending before the concerned Courts. In that view of the matter, I am of the view that the order passed by the Conciliation Officer is just and proper.
11. It is also required to be noted that the order of the Conciliation Officer, is challenged by the petitioner Union after two years of passing of the order, in my opinion, the act of the petitioner-union is nothing but an attempt to arm-twist the management and no satisfactory explanation has been given for the said delay.
12. In the case of Feroz Din and Ors (supra) it has been categorically held that strike and lock out cannot go together. A perusal of the document at Annexure-R/1 makes it clear that the alleged dispute for which the workmen have prayed for admission of the conciliation proceedings, which are already pending for adjudication before the concerned Courts and therefore, continuation of strike by the workmen is clearly in fact contravention of the provisions of the Industrial Disputes Act, 1946. In that view of the matter, I am of the view that the order of the Conciliation Officer is just and proper. Therefore, the present petition deserves to be dismissed, summarily. Hence, the same is dismissed.
13. During the course of hearing, this Court suggested learned advocate for the petitioner to withdraw this petition, as the act of the petitioner appears to be an abuse of the process of law but, the learned counsel for the petitioner has opted to proceed with the matter. Therefore, this Court deems it proper to impose costs on the petitioner, which is quantified at Rs.1500/-, the same shall be deposited before the Gujarat Legal Service Authority.
[K.S. JHAVERI,J.] pawan Top