Gujarat High Court
Chauhan Govindbhai Gordhanbhai - 11828 ... vs Indian Petrochemicals Corporation ... on 27 March, 2015
Author: N.V.Anjaria
Bench: N.V.Anjaria
C/SCA/8883/2014 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8883 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE N.V.ANJARIA
===========================================================
1 Whether Reporters of Local Papers may be allowed to see Yes
the judgment ?
2 To be referred to the Reporter or not ? Yes
3 Whether their Lordships wish to see the fair copy of the No
judgment ?
4 Whether this case involves a substantial question of law as No
to the interpretation of the Constitution of India or any order
made thereunder ?
================================================================
CHAUHAN GOVINDBHAI GORDHANBHAI - 11828 & 425....Petitioner(s)
Versus
INDIAN PETROCHEMICALS CORPORATION LIMITED. & 3....Respondent(s)
================================================================
Appearance:
MR PR THAKKAR, ADVOCATE for the Petitioner(s) No. 1 - 426
MR PARITOSH CALLA, ADVOCATE for the Respondent(s) No. 4
MR.VARUN K.PATEL, ADVOCATE for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2 - 3
================================================================
CORAM: HONOURABLE MR.JUSTICE N.V.ANJARIA
Date : 27/03/2015
CAV JUDGMENT
The petitioner-426 in number, through their nine power-of-attorney holders have filed the present petition, seeking to challenge the order dated 19th Page 1 of 15 C/SCA/8883/2014 CAV JUDGMENT April, 201, passed by Labour Court No.2, Vadodara whereby the Labour Court rejected their application Exhibit 24 for consolidate different Reference cases of the petitioners-workmen.
2. Upon the individual workman having raised industrial dispute invoking the jurisdiction of the Labour Court, different Reference cases being Reference (LCV) No.688 of 2010 to Reference (LCV) No.1151 of 2010 are pending before the Labour Court, Vadodara. The term of Reference and the demand by each of the workman in their respective References is whether the workman concerned should be reinstated on his original post with continuity of service and back wages. In the said proceedings, application Exhibit 24 was filed wherein the payer made was to pass an appropriate order consolidating all the Reference cases and to decide the same by allowing the parties to lead common evidence in one consolidated case and to decide all such Reference cases by common judgment.
2.1 According to the workmen, in all cases common questions of facts and common questions of law arise and therefore unless tried consolidated, there is likelihood of different judgments in each case, Statement of claim filed by each workman is identical in nature and that reply filed by the first party employer is also similar in substance. It was pleaded that common questions arise. The respondent No.1-the employer filed its reply and objected to the prayer contending inter alia that the facts and allegations require individual dealing with case and leading of Page 2 of 15 C/SCA/8883/2014 CAV JUDGMENT separate evidence.
2.2 It appears that the employer also filed Exhibit 8 application for a direction that the workman concerned should be asked to deposit and pay back the retiral benefits, which he had received pursuant to the retirement opted in the Voluntary Retirement Scheme, as a condition precedent to proceed with the Reference cases.
3. Adverting to look into the nature of dispute and the controversy involved Reference cases, as already noted, the References by the each workman were individually raised under Section 2A of the Industrial Disputes Act, 1947. Each workman sought relief of reinstatement with continuity of service and back wages. The workmen were working in different capacities such as Khalis, Technical Operator, Crane Operator, Sweeper, Gardner, Rigour, store man, Compounder, Clip Operator, Driver and Canteen employees. In the statement of claim filed by the workman concerned it was the case that he belong to non-supervisory staff and discharging duties since several years, it was the case that first party employer-Indian Petrochemicals Company Limited (IPCL) introduced a Voluntary Retirement Scheme nomenclatured as "Voluntary Separation Scheme for Baroda Complex" on 06.03.2007. It was stated that somewhere in the year 2002, Reliance Industries purchased share capital of IPCL, pursuant to which, the management of IPCL wanted to engage labour contractors and to driver the Page 3 of 15 C/SCA/8883/2014 CAV JUDGMENT permanent employees out of service, framed the Voluntary Retirement Scheme which was an unfair labour practice.
3.1 It was alleged that pressure tactics were adopted by the first party employer and several employees including the petitioners were forced to apply under the said Voluntary Separation Scheme on or before 20.03.2007 and they had to resign. It was the case that they wanted to take back their resignation, that with such request they approached the management on the evening of the last day of the scheme period which was to expire. However the management did not give back the form and treated the resignation continue and that the workmen concerned were treated to have resigned from April, 2007.
3.2 The statement of claim contained allegation as regards exertion of force by the representatives of the management on each workman. It was stated that since the management did not allow the withdrawal application which the workmen had filed on 20.03.2007, some of the workmen sent withdrawal by Registered A.D. Post on 21.03.2007, whereas some other cold file such application of withdrawal from the Scheme on 22.03.2007. It was further stated that there were some employees who sent their applications through email. Therefore it was submitted that number of employees wanted to withdraw from Scheme but were forced to resign, hence sent their withdrawal application by different mode as aforesaid.
Page 4 of 15 C/SCA/8883/2014 CAV JUDGMENT3.3 It was the case of the workmen that each of them was entitled to withdraw their application made in the Scheme and ought to have been permitted to withdraw the same on or before 28.03.2007. It was their case that action of the IPCL-the first party-not to allow the withdrawal to each of the workman was illegal. It was their case in nutshell that their applications were obtained to be included in Retirement Scheme forcibly which each of the workman wanted to withdraw but was disallowed by the first party.
3.4 It appears that earlier, upon representations made having been failed, the petitioners had filed Special Civil Application No.202 of 2007 before this Court, in which this Court held that disputed questions of facts were involved and required the petitioners to raise Industrial Dispute. Thereafter it appears that the Assistant Labour Commissioner refused to refer the dispute sought to be raised by the workmen, against which, the petitioners filed writ petition which came to be dismissed; the Letters Patent Appeal No.481 of 2009 and others were preferred which came to be allowed on 23.08.2010. The respondent-Company filed Special Leave Petition before the Supreme Court which was not entertained, whereupon the dispute came to be referred in all individual cases similarly worded as mentioned above.
3.5 The first party employer filed Written Statement in Reference cases and contested the same on various Page 5 of 15 C/SCA/8883/2014 CAV JUDGMENT grounds. It denied that any coercion has exerted against any workmen to force them to apply under the Scheme. It has been submitted that large number of employees including the petitioners opted for the Scheme, that most of the employees collected their letters of acceptance between 21.03.2007 and 23.03.2007 and for those employees who did not collect their acceptance letter, their acceptance were placed on notice board on 24.03.2007. It was contended that as many as about 2391 employees opted for Voluntary Separation/Retirement Scheme and except about 356 workmen collected their letters. The said 356 include 99 persons who are amongst the employees whose References numbered as above are pending. It is contended that the Scheme was introduced on 20.03.2007, that the petitioners opted to apply under the Scheme but never made any application for withdrawal at any point of time. The competent authority accepted the application on 20.03.2007 and the same was communicated to the workmen concerned upon which the individual acceptance letter was collected. Various allegations in the statement of claim came to be specifically denied by the first party employer-IPCL in its written statement.
4. Learned advocate for the petitioners Mr.P.R. Thakkar submitted that since the facts and allegations are common about coercion to individual workman by the representative of the management of the first party, for applying under the Scheme and subsequently the workman concerned was not permitted to withdraw from the Scheme, the common question of facts and law are Page 6 of 15 C/SCA/8883/2014 CAV JUDGMENT involved. According to his submission, all the Reference cases are required to be tried together as the grievance of all the workmen is common. He submitted that trying the References separately would be exposing to a situation of possible conflicting and different decisions by the Court in different cases. It was submitted that the Reference cases were identically worded and Labour Court is required to deliver a common judgment. He submitted that cost and time would be saved if all the References are tried together by consolidating and common evidence is led. Learned advocate invited the prayer made in Exhibit 24 application which was three folds, firstly to consolidate the Reference cases, secondly to direct common trial of all the cases by allowing both the parties to lead common evidence in one consolidated case and thirdly that the Labour Court may be directed to decide all the Reference cases by common judgment.
4.1 Learned advocate for the petitioner submitted that in the interest of justice the power to consolidate the References ought to have been exercised since the cause of action was similar and that there was a general grievance against the Voluntary Retirement/Separation Scheme and its implementation by the first party employer. Learned advocate relied on, to support his submissions, decision of the Supreme Court in M/s.Chitivalasa Jute Mills Vs M/s.Jaypee Rewa Cement [AIR 2004 SC 1687]. He next relied on decision of this Court in Zakinaben D/o Gulamhusen Kamruddin Lokhandwala Vs Babul Alimohamad Kapadia [1999 (1) GLH 378] as well as Page 7 of 15 C/SCA/8883/2014 CAV JUDGMENT another decision also of this Court in Saurashtra Chemicals Limited Vs Saurashtra Chemicals Employee Union [(2004) 5 GHJ (213)].
4.2 On the other hand, learned senior counsel Mr.K.M. Patel assisted by learned advocate Mr.Varun Patel supported the impugned order. It was submitted that the facts and allegations in the each of the Reference filed individually by the workman concerned were required to be examined separately which can be done only by trying the cases separately and leading separate evidence in each case. He submitted that the allegations of forcible inclusion of the workman concerned for the purpose of Voluntary Retirement Scheme, alleged coercion exerted by the representative of the management, etc., was the aspect which could be addressed only individually. He submitted that disputed questions of facts requiring leading of evidence in each case arise.
4.3 Learned senior counsel relied on affidavit-in- reply filed in the present petition and submitted that the following and other questions of fact seriously disputed by both the sides arise for consideration and leading of evidence-(i) whether the concerned petitioner was subjected to any threat or intimidation for making an application to avail VSS/SSS? If yes, by whom and when?, (ii) Whether the concerned petitioner had approached the Management within one to two hours of closing of VSS/SSS on 20-3-2007 and had sought to orally withdraw the application?, (iii) Whether subsequent to payment of amount under VSS/SSS the Page 8 of 15 C/SCA/8883/2014 CAV JUDGMENT concerned petitioner had made application for payment of gratuity and provident fund? If yes, when and whether conditionally or unconditionally?, (iv) Whether the concerned petitioner had filled up form 10-E for availing income-tax relief?, (v) Whether the concerned petitioner had made written application for withdrawal of his appellant under VSS/SSS? If yes, was it before acceptance of his application or after acceptance? And (vi) Whether the concerned petitioner has collected acceptance letter on 21-3-2007 or 23-3- 2007? (It is the case of management that only 99 did not collect acceptance letter as advised and despite second notice on 24-3-2007 and therefore to those who did not collect their acceptance letters as per notice dated 21-3-2007 and 24-3-2007 were sent acceptance letter by Registered A.D. post on 26-3-2007). It was finally submitted that the prayer for consolidation of all the Reference cases and leading of common evidence is misconceived and entirely untenable.
5. Having considered the facts of the Reference cases, the defence facts of the first party employer and the controversy and the term of Reference being tried by the Labour Court in the Reference cases of the petitioner-workmen, it has to be noticed at the outset that the Reference cases arise out of individual dispute raised and treated as an individual dispute under Section 2AA of the Industrial Disputes Act, 1947 (hereinafter mentioned as 'the Act'). Section 2A of the Act is as under, "2-A. Dismissal, etc., of an individual workman to Page 9 of 15 C/SCA/8883/2014 CAV JUDGMENT be deemed to be an industrial dispute.-Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union or workmen is a party to the dispute."
5.1 Each of the workmen had filed individual complaint alleging facts about his own termination of services. Thus very basis of the invocation of jurisdiction of Labour Court was individual complaint stating individual case and facts claimed, statements made about individual grievance and seeking individual relief.
5.2 As noted above, the workmen had opted for Voluntary Retirement Scheme but with allegation that he was not permitted to withdraw therefrom though wanted and requested, it was a termination effected illegally. The case of the individual workman was that he was forced to apply under the Scheme and subsequently denied the withdrawal therefrom. The term of Reference and the relief sought by each workman is, to be stated at the cost of repetition, his reinstatement on the original post and consequential benefit of continuity of service and back wages. In other words, the lis which arises pursuant to References raised under Section 2A, the workman complaining individually, is a separate dispute between an individual workman and the first party employer-IPCL. The case of each workman with regard to the allegations made in the statement of claim would have to be examined and in the context of the pleading Page 10 of 15 C/SCA/8883/2014 CAV JUDGMENT in each case, the evidence would be required to be led and adduced. Leading evidence generally would be no answer to the individual cases.
5.3 The disputed questions of fact highlighted by learned senior counsel for the first party employer which are mentioned above, do emerge necessitating examination of each cases individually and leading and adducing separate evidence. Whether an individual workman was coerced and induced to apply in the Scheme, who coerced him, the manner of coercion applied to him, when he made request for withdrawal from the Scheme and by which mode such request was made, if made. The case of the workmen themselves is that different workman requested for withdrawal from the Scheme by adopting different modes of writing letters or sending the request by email, etc., and that some made such request on a particular date whereas some of them could made at a later date. These all are issues and questions to be separately examined and to be established on the basis of separate set of evidence to be led which could not done in common way.
5.4 Having regard to the compass and contour of the dispute between a workman and the employer, the evidence would be required to be led on the aspects of conduct of the workman concerned after his application under the Scheme was accepted and was relieved from service. The workmen have accepted even the retirement benefits upon their having applied under the Scheme and management having allowed them to retire. The amount of retirement benefit was credited as per the Page 11 of 15 C/SCA/8883/2014 CAV JUDGMENT case of the employer-IPCL. Whether the workman concerned received such intimation about the credit of the amount and whether he as accepted the same is also a bearing aspect; whether the workman concerned after receiving the amount repaid the amount if he was not to accept the inclusion in the Scheme which was not voluntary as per the case raised by him subsequently- are all the aspects for which leading of evidence distinct in each case would be necessary. With regard to the prayer of reinstatement as if it was dismissal and the relief for back wages, the question whether an individual workman was gainfully employed, etc., would have to be answered. All these are the possible aspects of the controversy and the dimensions in the dispute raised by the workmen needing individualized approach. The consolidation of all the References, would not only be unjustified but the common leading of evidence may work detrimental to the interests of rival sides.
6. Adverting to the decisions relied on by learned advocate for the petitioners, in M/s.Chitivalasa Jute Mills (supra), there was a contract for supply of jute bag between plaintiff company and defendant company and defective goods were supplied. Suit was filed by the two companies for recovery of amount before different Courts. The Court held that the issues and the cause of action were common and the suit subsequently instituted to the court where the first suit was instituted. Similarly the other two decisions of this Court in Zakinaben (supra) and Saurashtra Chemicals (supra) also do not have application. In Page 12 of 15 C/SCA/8883/2014 CAV JUDGMENT the first mentioned case, the suits were ordered to be consolidated to avoid multiplicity of proceedings and to avoid unnecessary contradiction in the evidence. It stood true on its facts. In the present case however since the facts and issues required separate evidence to be led, the question of contradiction does not arise. The second decision in Saurashtra Chemicals (supra) was on a different fact as was noticeable from paragraph 3 thereof.
7. In view of above, the References are essentially based on individual allegations and counter-replied accordingly. The contested pleadings would have to be subjected to evidence and proof in such context so as to arrive proper decision and judgment by the Labour Court. Though the grievance is in respect to the application made by the workmen in the Voluntary Retirement Scheme floated by the employer and about non-permission of withdrawal therefrom subsequently sought for by the individual workman, that aspect by itself does not make the nature of the dispute common. The dispute is individually raised and is required to be examined with reference to the facts and allegations vis-à-vis each workman, for which separate leading of evidence would be necessary. The References of all the petitioner-workmen do not require to be consolidated, which would lead to a chaotic situation in the Reference proceedings. The case of each workman would go haywire in terms of proof needed to be elicited if evidence is taken in common for all in consolidated way. The individual grievance would loose focus and consequently injustice would be done to the Page 13 of 15 C/SCA/8883/2014 CAV JUDGMENT parties.
7.1 In the facts of the present case discussed hereinabove, the cause of action for each workman could not be said to be identical cause of action. It comprise of individual facts, allegations and countering stance of the employer. The References themselves are individually raised and the relief though apparently similarly worded is true only individually. The submission of this line made by learned advocate for the petitioners was attractive at the first blush but on an attentive and differ examination of facts and rival pleadings, the plea of identity of cause of action was only an eye-wash.
8. The impugned order of the Labour Court is well reasoned and is based on the relevant considerations. For refusing the prayer for consolidation of References, the reasons which have weighed with the Labour Court are all germane. It was only reasonable, proper, judicious and legal for the Labour Court to reject the request for consolidation of all Reference cases and leading of common evidence.
9. For the forgoing reasons, the prayer for consolidation of all the References could not be entertained. In the facts and circumstances of the case, the References would have been tried and dealt with separately. The reasoning supplied and view taken by Labour Court No.2, Vadodara in its impugned order dated 19.04.2014 rejecting the application (Exh.24) does not book any error, much less an error of law or Page 14 of 15 C/SCA/8883/2014 CAV JUDGMENT an error of jurisdictional exercise.
10. As a result, the present petition stands dismissed. Notice is discharged.
(N.V.ANJARIA, J.) chandrashekhar Page 15 of 15