Gujarat High Court
Apollo Tyres Limited vs Commission Of Labour And Anr. on 12 December, 2007
Equivalent citations: (2008)IILLJ184GUJ
Author: H.K. Rathod
Bench: H.K. Rathod
ORDER H.K. Rathod, J.
1. Heard learned advocate Kiran C. Raval for the petitioner.
2. Looking to the prayer made by the petitioner in para 20-(i) of the petition, the petitioner is praying to quash and set aside the impugned order of Reference dated June 22, 2007 at annexure E and direct the Industrial Tribunal, Vadodara not to continue adjudication of the Reference being Ref.(IT) No. 84/2007 pursuant to impugned order at annexure E. Petitioner is also praying to stay further adjudication proceedings of said reference pending before the Industrial Tribunal at Vadodara pending hearing and final disposal of this petition.
3. Learned advocate Raval has raised various contentions before this Court while challenging the aforesaid order of reference. He submitted that this being an individual dispute converted to an industrial dispute, therefore, order of reference is bad. He also submitted that the union which is not representing substantial number of workmen has raised a dispute only in respect of employees those who are placed under suspension by the petitioner company. He also submitted that recently, there is settlement wherein the union is not a party which has raised industrial dispute, except that, all the workmen have accepted the settlement in toto. He also submitted that this dispute has been characterized as an industrial dispute only with a view to get advantage of pendency of an industrial dispute, impliedly to get protection of Section 33 of the ID Act, 1947. He also submitted that in other matter wherein union is a party, preliminary contention has been raised by the petitioner challenging the legality, validity and propriety of the reference which issue is still not decided and is pending before the Industrial Tribunal, Baroda. Learned advocate Raval is having impression that the Tribunal will not decide it because the Tribunal will rely upon the statement of the other side advocate that he will not proceed with the matter and that he will take adjournment and adjournment till he wants and, therefore, he submitted that the order of reference is bad and illegal. Except these contentions, no other contention was raised by the learned advocate KC Raval before this Court and no decision was cited by him before this Court in support of the contentions recorded hereinabove.
4. I have considered the submissions made by the learned advocate KC Raval before this Court. Considering the submission of learned advocate Raval that the order of reference is bad, learned advocate Raval has not been able to point out as to which right of the company is violated by respondent No. 1 by making an order of reference. Unless and until it is successfully demonstrated by the party challenging an order of reference that it is violative of any right of the petitioner, such party cannot be permitted to challenge the order of reference only on the ground that the reference is bad. Even if it is believed that the order of reference is bad, then also, that would, ipso facto, not entitle such party to challenge the same before the higher forum. So long as the right of the petitioner company not adversely affected by the respondent No. 1 while passing the order of reference, this Court cannot entertain the petition only on that ground. Writ petition is maintainable only when right of the parties are adversely affected by the action or order of the State Authority. Learned advocate Raval has not been able to point out before this Court that because of the order of reference made by respondent No. 1, any right of the petitioner has been adversely affected. Therefore, on this count, writ petition is not maintainable. Apart from that, whatever contentions raised by the petitioner in this petition before this Court can be raised by the petitioner even before the Industrial Tribunal as well while participating in the reference proceedings and the petitioner can participate in the reference proceedings without prejudice to his rights and contentions to challenge the order of reference if the ultimate orders of the Tribunal are adverse to the petitioner, then same can be challenged therefore, on that ground also, writ petition challenging order of reference is not maintainable. Therefore, according to my opinion, petitioner is having alternative effective remedy to raise all these contentions before the Industrial Tribunal and the Tribunal is competent enough to adjudicate or decide it on the basis of the record which can be produced by the respective parties before the Tribunal. So, the petitioner is having alternative equally efficacious remedy to raise all these contentions before the Industrial Tribunal and therefore also this petition is not maintainable because petitioner has not been able to point out that any right of the petitioner has been adversely affected by order of reference.
5. Further, whether the union is representing substantial number of workmen or not; whether the individual dispute under Section 2A is to be converted into a dispute under Section 2(k) or not; in respect of the settlement, whether that settlement has been accepted by each workman or not and whether the union which has raised dispute is entitled to raise the dispute in respect of suspended employees or not and whether all these contentions raised by the petitioner in this petition for challenging order of reference were raised by the petitioner in conciliation proceedings or not, all these are the disputed questions of fact which cannot be appropriately dealt with and decided by this Court in a petition under Article 226 of the Constitution of India. There is nothing on record to show that the petitioner has raised any of such contentions before the conciliation officer. All these are the disputed questions of fact requiring appreciation of evidence and the petitioner is having ample opportunity to raise preliminary contention before the Industrial Tribunal in respect of whatever contention raised before this Court and the Industrial Tribunal can, on the basis of the evidence and record produced by the parties, examine the same but this Court cannot examine all these disputed questions of fact in a petition under Article 226 of the Constitution of India.
6. In Philips India Limited and Anr. v. P.N. Thorat, Asstt. Commissioner of Labour and Conciliation Officer and Ors. 2006-1-LLJ-1013 (Bom), order of reference was challenged by the employer before the Division Bench of Bombay High Court. Workmen were contending fraud committed by employer in implementing settlement for Voluntary Retirement Scheme. It was held that the dispute involved triable issues requiring evidence to be led and, therefore, employer's challenge was held to be not sustainable. Relevant observations made by the Division Bench of the Bombay High Court in the said decision in para 12 are reproduced as under at p. 1017 of LLJ:
12. From the above, what emerges is that there are serious triable issues. The contention of the Union and the workmen is that fraud has been practised upon them. If the workmen are able to succeed in proving that the agreement was entered into by playing fraud, it will be open for them to avoid the settlement. This issue cannot be answered by this Court at this stage as it would require evidence to be led. Prima facie a Division Bench of this Court in the very proceedings has taken note that the employees involved in both the writ petitions would be workmen. The Apex Court, however, left that question to be decided. At any rate the expression workmen considering Section 2(s) of the ID Act would include ex-workmen. That contention of the management that they are not workmen would require adjudication of facts. Based on these findings and the issue of pensionary benefits under VRS it will have to be considered whether the dispute partakes of an industrial dispute. This again would be premature for this Court to decide at this stage and it will be open to the petitioners to raise all issues before the Industrial Tribunal to which the reference is made. Similarly the contention of the employer that they have complied with the terms of the settlement and consequently there is no industrial dispute and that the employees cease to be workmen will have to be adjudicated upon by the Tribunal.
7. Similar question has been examined by the Division Bench of Delhi High Court in DD Gears v. Secretary (Labour) and Ors. 2006 LIC 1462 wherein reference of an industrial dispute to the Industrial Tribunal was challenged. It was held that no writ petition should be entertained against a mere reference as not affecting rights of the parties. It was held in para 19,20,21 and 22 of the said judgment as under:
19. The learned single Judge rejected the 5 Writ petition and hence this appeal.
20. In our opinion, we cannot interfere with the reference order under Section 10(1) of the Industrial Disputes Act because that 10 order does not affect the rights of the parties. Hence the Writ petition against that order is liable to be dismissed.
21. It is well settled that a writ petition lies only when the rights of some party has been adversely affected. A mere reference under Section 10(1) of the Industrial Disputes Act does not effect anyone rights and hence no writ petition should ordinarily be entertained against a mere reference under Section 10(1), as such a petition is premature.
22. It is only when an award is given by the Labour Court or Tribunal that a writ petition 25 should be entertained.
8. In the instant case also, mere reference has been made by respondent No. 1 and petitioner is unable to point out how it is adversely affecting the rights of the company. Petition is also involving disputed questions of fact which cannot be appropriately dealt with and decided in a writ petition under Article 226 of the Constitution of India. Therefore, in view 35 of the aforesaid two decisions, petition is not sustainable in law.
9. In Sanjay Sitaram Khemka v. State of Maharashtra and Ors. , maintainability of petition involving questions of fact was considered by the Apex Court. It was held that the matter involving disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. Relevant observations made in para 8 and 9 of the judgment by the apex Court are reproduced as under:
8. Having regard to the allegations and counter allegations made by the parties 50 before us, we are of the opinion that no relief can be granted to the petitioner in this petition. The writ petition has rightly been held by the High Court to be involving disputed questions of fact. The petitioner has several causes of action wherefor he is required to pursue specific remedies provided therefor in law.
9. A writ petition, as has rightly been pointed out by the High Court, for grant of said reliefs, was not the remedy. A matter involving a great deal of disputed questions of fact cannot be dealt with by the High Court in exercise of its power of judicial review. As the High Court or this Court cannot, in view of the nature of controversy, as also the disputed questions of fact, go into the merit of the matter; evidently no relief can be granted to the petitioner at this stage. We are, therefore, of the opinion that the impugned judgment of the High Court does not contain any factual or legal error warranting interference by this Court in exercise of its jurisdiction under Article 136 of the Constitution.
(See : (2007) 6 MLJ 406)
10. Therefore, in view of the above observations made by the Supreme Court, Bombay High Court, as well as the Delhi High Court as referred to above, and also considering the facts of the present case which involves disputed questions of fact and also considering the fact that the petitioner is not able to contend that the order of reference is adversely affecting its right, according to my opinion petition is not maintainable against order of mere reference made by respondent No. 1 as petitioner is having specific remedy before the Industrial Tribunal to raise all the contentions raised in this petition before the Tribunal because the questions raised in this petition are such which would require evidence to be led and appreciation thereof. According to my opinion, petitioner herein is having several causes of action for which petitioner is required to pursue specific remedy before the Tribunal and this Court cannot decide such disputed questions of fact in exercise of the powers under Article 226 of the Constitution of India. It is more so when the petitioner is not alleging any mala fides against respondent No. 1. Further, it is not the case of the petitioner that the Industrial Tribunal is not having power to examine the preliminary contention which may be raised by the petitioner in respect of the contentions raised by the petitioner in this petition before this Court, meaning thereby, Tribunal is having powers under Section 10(1) and 10(4) of the ID Act, 1947, so, Tribunal is competent to decide all the contentions that may be raised by the petitioner before it including the preliminary contention as well and can participate in the reference proceedings without prejudice to its rights and contentions in respect of the preliminary contention and if the ultimate outcome is adverse to the petitioner, then, petitioner can challenge the same on all grounds available to him including the contentions raised by petitioner before this Court against the order of reference. In view of that also, this petition is not maintainable in law.
11. Therefore, considering the entire facts and circumstances of the case, according to my opinion, petition in its present nature is not maintainable and, therefore, same is liable to be dismissed. Accordingly, this petition is dismissed.