Gujarat High Court
Amazon Transportation Services vs Assistant Labour Commissioner And on 11 July, 2017
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SCA/21430/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 21430 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 21433 of 2016
With
SPECIAL CIVIL APPLICATION NO. 21436 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 21439 of 2016
With
SPECIAL CIVIL APPLICATION NO. 21441 of 2016
TO
SPECIAL CIVIL APPLICATION NO. 21443 of 2016
With
SPECIAL CIVIL APPLICATION NO. 21429 of 2016
With
SPECIAL CIVIL APPLICATION NO. 21444 of 2016
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AMAZON TRANSPORTATION SERVICES
PVT LTD. ....Petitioner
Versus
ASSISTANT LABOUR COMMISSIONER AND
CONCILIATION OFFICER & ORS. ....Respondents
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Appearance:
MR. SANJEEV PURI, SENIOR ADVOCATE with
MR. ROHIT PURI, ADVOCATE with
MR. KEYUR GANDHI, ADVOCATE with
MR. NISARG DESAI, ADVOCATE for
NANAVATI ASSOCIATES for the Petitioner
MR. RASHESH RINDANI, ASSISTANT GOVERNMENT PLEADER for the
Respondent - State Authority
Respondent Workmen are served
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C/SCA/21430/2016 ORDER
CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Date : 11/07/2017
ORAL ORDER
1. Challenge in this group of petitions is made by the principal employer to the different but identical orders dated 23.05.2016 passed by the Assistant Commissioner of Labour at Vadodara as the Appropriate Government, making Reference to the Labour Court, Vadodara.
2. Mr. Sanjeev Puri, learned senior advocate for the petitioner has submitted that, the concerned workmen were not the workmen of the present petitioner and therefore the Reference against the present petitioner is not legal. It is further submitted that, not only it is the case of the present petitioner but it was the case of the concerned workmen also before the Conciliation Officer that, they were the employees of the contractor. Attention of this Court is invited to the details given by the concerned workmen qua their employer in the complaint, which is on record. It is pointed out that even the name of the contractor was referred to in the said complaint by the workmen. It is submitted that the said contractor had, in turn, made its stand clear before the Conciliation Officer that, the discontinuance of service was legal and in any case, they were the employees of that contractor, and the principal employer had nothing to do in the matter. It is submitted that on the face of this material before the Conciliation Officer, while making Reference under the delegated powers, if at all it was required to make Reference, Page 2 of 5 HC-NIC Page 2 of 5 Created On Sun Aug 13 07:35:00 IST 2017 C/SCA/21430/2016 ORDER the said Reference could be against the contractor alone. It is submitted that the impugned order making Reference is illegal not only on the ground that the present petitioner is wrongly joined as party, but it is illegal also on the ground that the said contractor ought to have been joined as necessary party, which is not done. It is submitted that the Appropriate Authority, having failed to do so, has passed the order, which is vitiated by non-joinder of necessary party. It is submitted that the impugned orders need to be quashed and set aside. Learned advocate has also relied on the decision of this Court recorded on Special Civil Application No.12156 of 2017 dated 05.07.2017.
3. Though served, the respondent workmen have chosen not to appear and contest these petitions.
4. Mr. Rindani, learned Assistant Government Pleader, appearing for the Authority who passed the Reference orders, has contested these petitions. He has taken this Court through the contents of the affidavit in reply of the Assistant Commissioner of Labour, Vadodara dated 21.01.2017. He has specifically taken this Court through the contents of para : 8 and 9 of the said affidavit in reply to contend that, there is no illegality in the impugned orders and no interference be made by this Court. It is submitted that these petitions be dismissed.
5. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under.
5.1 The point for consideration before this Court is, as to Page 3 of 5 HC-NIC Page 3 of 5 Created On Sun Aug 13 07:35:00 IST 2017 C/SCA/21430/2016 ORDER whether, the impugned orders passed by the Assistant Commissioner of Labour, Vadodara making Reference against the present petitioner are sustainable or need to be interfered with.
5.2 This Court finds substantial force in the submission of learned senior advocate for the petitioner that, on the face of the grievance of the concerned workmen before the Conciliation Officer, if at all Reference was required to be made, it could be only against the contractor. Even if the issue, as to whether the present petitioner should have been there (in the Reference) or not, is not gone into, in any case the concerned contractor should have been there in the proceedings. The status of the present petitioner would be at the best as the proper party, but the contractor is the necessary party. Thus the impugned orders are vitiated for non-joinder of necessary party. The impugned orders therefore need to be interfered with.
5.3 This Court further finds that, it is not that this material aspect has escaped the notice of the concerned Authority. Even the present petitioner had, in terms, so contended before the Authority. Thus the conscious exclusion of the necessary party makes the impugned orders unsustainable.
5.4 It is also noted that if the proceedings are permitted to go ahead before the Labour Court as it is, and if it is ultimately adjudicated in favour of the workmen, the said award may not be effectively implemented on the face of the grievance of the workmen themselves that, they were the workmen of the contractor. In totality, this Court finds that the impugned Page 4 of 5 HC-NIC Page 4 of 5 Created On Sun Aug 13 07:35:00 IST 2017 C/SCA/21430/2016 ORDER orders need to be quashed.
5.5 While setting aside the impugned orders, it also needs to be clarified that, interference of this Court is only on the ground that the necessary party is not joined, and therefore, in the event the workmen re-agitate this issue, it would be open for the competent Authority to pass fresh order(s) in accordance with law. It is also noted that since only the issue (which is noted above) is raised, other aspects of the matter, including the competence of the respondent Authority, are not gone into in these petitions.
6. For the above reason, the following order is passed.
6.1 These petitions are allowed.
6.2 The impugned orders passed by the Assistant Commissioner of Labour at Vadodara dated 23.05.2016, making Reference to the Labour Court, Vadodara against the present petitioner is quashed and set aside, subject to clarification noted above.
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