Gujarat High Court
Managing Director vs Gacl Officers' Friends on 22 March, 2013
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
MANAGING DIRECTOR....Petitioner(s)V/SITS EMPLOYEES THRO SECRETARY GACL OFFICERS FRIEND ASSOCIATI C/SCA/797/2013 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION NO. 797 of 2013 FOR APPROVAL AND SIGNATURE: HONOURABLE MR.JUSTICE PARESH UPADHYAY Sd/- ================================================================ 1 Whether Reporters of Local Papers may be allowed to see the judgment ? YES 2 To be referred to the Reporter or not ? YES 3 Whether their Lordships wish to see the fair copy of the judgment ? NO 4 Whether this case involves a substantial question of law as to the interpretation of the Constitution of India, 1950 or any order made thereunder ? NO 5 Whether it is to be circulated to the civil judge ? NO ================================================================ GUJARAT ALKALIES AND CHEMICALS LIMITED ....Petitioner Versus GACL OFFICERS' FRIENDS ASSOCIATION ....Respondents ================================================================ Appearance: MR KS NANAVATI, SENIOR ADVOCATE WITH MR NIRAV JOSHI FOR NANAVATI ASSOCIATES for the Petitioner MR MUKUL SINHA, ADVOCATE for the Respondent- Association ================================================================ CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY Date : 22/03/2013 ORAL JUDGMENT
1. Heard Mr. K.S. Nanavati, learned Senior Advocate with Mr.Nirav Joshi, for the petitioner Company and Mr. Mukul Sinha, learned advocate for the respondent Association.
2. Challenge in this petition is made to the common order passed by the Industrial Tribunal, Vadodara on applications Exh.65 and Exh.71, in Reference (IT) No.106 of 2011, dated 10.12.2012, whereby it is decided to consider the application Exh.65 of the respondent Association for interim relief, without dealing with the preliminary objections of the petitioner Company that the respondents are not the workmen within the meaning of Section 2(s) of the Industrial Disputes Act, 1947 and are therefore not entitled to any relief, much less the interim relief.
Learned advocate for the petitioner has contended that, the respondent Association, by the very name GACL Officers' Friends Association, is officers' Association and even if one may not go by only the nomenclature, if the details of each employee of the respondent Association, whose cause is sought to be espoused before the Industrial Tribunal, which is on record, is seen, it demonstrates that in any case, they can not be termed as 'workmen' which may confer any right in their favour to claim any relief from the Tribunal nor would it confer any jurisdiction to the Industrial Tribunal to adjudicate the claim of the respondents. It is also agitated that right from the beginning, i.e. from the stage of conciliation proceedings, the petitioner Company has taken the stand that the respondents are the officers and managerial staff of the petitioner Company and they are not the workmen and therefore, they will not be entitled to claim any relief or protection under the Industrial Disputes Act, 1947. Leaned advocate for the petitioner has taken the Court through all the replies, which are filed by the petitioner company before the authorities, at each stage, which are on record, where this contention is taken. Specific reference is also made to the reply before the Tribunal in this regard. It is contended that this point, which is in the nature of preliminary issue, had to be decided first, which the Tribunal did not do. It is further contended that, if this point was adjudicated by the Tribunal at the time of final hearing, then also, under normal circumstances, in view of the settled position of law, the petitioner Company would not have agitated in that regard, at this stage, however the respondent Association filed an application Exh.65 before the Tribunal, in the pending reference, praying for interim relief and by the said application, the respondent Association has prayed that the circular of the petitioner Company dated 02.10.2012 be stayed and status-quo be granted. At this stage, the petitioner Company again renewed its stand by giving application Exh.71 before the Tribunal, that the respondents are not the workmen and are therefore not entitled to any relief, and if their application for interim relief is to be considered on merits, let it be done after deciding the issue as to whether they are workmen or not. In this regard, the Tribunal, by the impugned order dated 10.12.2012, held that the application for interim relief Exh.65, filed by the respondent Association, will be considered and decided first. It is under these circumstances that the petitioner Company has approached this Court.
4. On the other hand, learned advocate for the respondent Association Mr. Mukul Sinha has vehemently contended that, firstly there is no cause of action for the petitioner Company to approach this Court at this stage, and further that it is the settled position of law that the management can not be permitted to delay the adjudication of the just claims of the workmen by the labour machinery, under one pretext or the other. Further, the question as to whether the Tribunal is competent to decide the issue raised before it, need not detain the Tribunal to consider the application of the respondent Association to grant interim relief. Learned advocate for the respondent Association further contended that, the plea like the bone contention in this petition on behalf of the petitioner Company, had already been taken by it before the conciliation officer, and the same having not been accepted and the Reference having been made by the appropriate Government and further, the petitioner Company not having challenged the said action of the appropriate Government, at this stage, can not agitate the question of not deciding its application Exh.71 by the Tribunal. It is contended that the decision of the Industrial Tribunal, Vadodara dated 10.12.2012 to hear the application Exh.65 first, then the application of the petitioner Company Exh.71, is legal and valid and no interference be called for. Mr.Mukul Sinha, by relying on the affidavit in reply filed on behalf of respondent Association through one Mr. Hiren Desai, dated 05.02.2013, has also drawn the attention of this Court to the office order of the petitioner Company dated 11.05.2009 to point out the merits of the grievance of the respondent Association.
5. At the outset, it needs to be recorded that, the scope of this petition is only to the extent of deciding the point which is formulated in paragraph 8 below. The other issues, including the merits of the application Exh.65, are large open before the Tribunal. Under these circumstances, though both the learned advocates have addressed the Court at length and have relied on number of authorities in support of their arguments, only those arguments are examined by this Court on merits, which are necessary for deciding the controversy raised in this petition. Same way, only those authorities, which has bearing on the said controversy, are taken into consideration. Other contentions and authorities are not discussed in this judgment, since it may prejudice the case of any of the parties before the Tribunal.
6.1 Learned advocate for the petitioner has drawn the attention of the Court that it is only because of the observations of Hon'ble the Supreme Court of India in the case of D.P. Maheshwari versus Delhi Administration and Others reported in (1983) 4 SCC 293, that the Tribunal passed the impugned order. For this purpose, the said judgment is read in full, to contend that the said judgment does not prohibit the consideration of preliminary issue like the one, which is raised in the present case, in all circumstances.
6.2 Learned advocate for the petitioner has relied on the following decisions :
Judgment of this Court in the case of Gujarat Kamdar Panchayat versus Maize Products reported in 2002 (1) GLR 567.
Judgment of the High Court of Karnataka in the case of Management of Rangaswamy & Co. versus D.V. Jagadish reported in 1990 (2) LLN
745.
Judgment of Hon'ble the Supreme Court of India in the case of Arun Agarwal versus Nagreeka Exports (P) Ltd. And Another reported in (2002) 10 SCC 101.
Judgment of Hon'ble the Supreme Court of India in the case of Arun Kumar and Others versus Union of India and Others reported in (2007) 1 SCC
732. Judgment of Hon'ble the Supreme Court of India in the case of Garrison Engineer (Utility), Bhatinda versus Narinder Singh reported in (2007) 11 SCC 35.
7. Learned advocate for the respondent Association has relied on the following decisions of Hon'ble the Supreme Court of India :
(1983)4 SCC 293 - D.P. Maheshwari versus Delhi Administration and Others.(2000)
1 SCC 371 - National Engineering Industries Ltd., versus State of Rajasthan and Others.(1997)
3 SCC 443 Tayabbhai M. Bagasarwalla and Another versus Hind Rubber Industries Pvt. Ltd. and Another.(2008)
14 SCC 58 Ramesh Chandra Sankla and Others versus Vikram Cement and Others.
8. Having heard learned advocates for the respective parties and having gone through the material on record, the point that falls for consideration before this Court is as to whether the preliminary objection raised by the petitioner Company, that the respondents are not workmen and are therefore not entitled to any relief from the Industrial Tribunal, was required to be adjudicated by the Tribunal, before considering the request of those employees for grant of any interim relief, and further, whether it was open to the Industrial Tribunal to decide it first.
9. No litigant can be permitted to contend before any legal forum, including Labour Court and Industrial Tribunal, that he may be granted relief, but the issue as to whether he is entitled to claim that relief, can be decided subsequently. Similarly, no legal forum, including Labour Court and Industrial Tribunal, can proceed to adjudicate any issue before it, in a way, that let the question of grant of relief in favour of one party be considered without adjudicating the preliminary objection raised by the other party, that the one who claims the relief is not only not entitled to get any relief, but he is not entitled even to claim it. The observations of Hon'ble the Supreme Court of India in the case of D.P. Maheshwari (supra) can not be read to be a mandate to defer the adjudication of preliminary objections raised by the employer before any Labour Court or Industrial Tribunal, even beyond the stage of consideration of grant of any relief to the other party, who is yet to be even adjudicated to be a workman.
10. In the present case, I find that the petitioner Company has already contended that respondents are not the workmen and are therefore not entitled to claim any relief. This contention is taken right from the beginning. This contention is neither an afterthought, nor do I find the same to be an attempt to delay the proceedings. The Tribunal is well within its authority to hold that the question as to whether one party before it, is a workman or not will be decided at the time of final hearing of the reference, while adjudicating all other issues raised before it, however, when the Tribunal embarks upon to consider the request of those employees to grant interim relief in their favour, in my view, it was illegal on the part of the Tribunal to hold that the question as to whether the respondents are workmen or not, will be decided subsequent to grant of relief, in the name of interim relief in their favour. If the observations of Hon'ble the Supreme Court of India in the case of D.P. Maheshwari (supra) is read along with other authorities which are referred in para 6.2 and 7 above, more particularly, the decision of this Court in case of Gujarat Kamdar Panchayat (supra) which was after considering the judgment of D.P. Maheshwari (supra), it can not be read to be a mandate, to defer the adjudication of preliminary objections raised by one party before the Tribunal, even beyond the stage of consideration of grant of interim relief to the other party, more particularly when the other party is objected to be, and yet adjudicated to be, the workman.
11. Though, in the present case, whether the respondents are workmen or not is an issue to be decided by the Tribunal, and this Court is to adjudicate only as to whether the Tribunal should have decided the application of the petitioner company Exh.71 raising preliminary objections, before considering the application Exh.65 i.e. the application of the respondents for interim relief, to satisfy prima facie, where the petitioner Company stands in its argument that the respondents are not workmen, reference can be made to the details with regard to the duties and emoluments of the respondent employees, which is on record. Specific reference is made by learned senior advocate for the petitioner Company to page 160 of the paper-book, which pertains to one Mr.R.P. Nathani, who is indicated to be an officer in the Purchase Department. In his case, emoluments, which is referred to as - CTC, Cost To the Company, per month is more than Rs.80,000/-. In this fact situation, when it is agitated before the Tribunal that he is not entitled to claim any relief, much less entitled to get it, in my view, is a bonafide and well founded argument of the petitioner Company which ought to have been decided first. On the basis of the material on record, this Court prima facie finds that the respondents are not the workmen and therefore, may not be entitled to any relief from the Tribunal. Though these observations may weigh to some extent against the respondent Association before the Tribunal, to adjudicate the controversy in this petition, this Court was required to go into this aspect to a limited extent, and it is further observed that, while adjudicating the preliminary issues raised by the petitioner company, the Tribunal shall decide the same on the basis of the total material before it, without being influenced by the observations of this Court in that regard in this judgment. In this fact situation, after taking into consideration the views expressed by Hon'ble the Supreme Court of India as well as this Court as referred above, I hold that, the impugned order of the Tribunal rejecting the argument of the petitioner Company that let the preliminary objections raised by it in its application Exh.71 be decided, before considering the application Exh.65 which is for claiming interim relief by the employees, was illegal and the Tribunal ought to have decided it first.
12. From the tenor of the impugned order of the Tribunal, it transpires that it is mainly based on the observations of Hon'ble the Supreme Court in case of D.P. Maheshwari (supra). However, as recorded hereabove, the observations of Hon'ble the Supreme Court of India in the case of D.P. Maheshwari (supra) can not be read to be a mandate, to defer the adjudication of preliminary objections raised by the employer, even beyond the stage of consideration of grant of any relief to a party, who is yet to be even adjudicated to be a workman. Under these circumstances, this Court arrives at the conclusion and holds that, in the facts of this case, it was incumbent upon the Tribunal to decide the preliminary objections of the petitioner, about the respondents not being workmen, at least before taking up application Exh.65 for interim relief, for consideration. I also find that, legally it was not impermissible for the Tribunal to take that course for adjudication.
13. For the reasons recorded above, this petition is allowed. The impugned order of the Industrial Tribunal, Vadodara, dated 10.12.2012 in Reference (IT) No.106 of 2011, below Applications Exh.65 and Exh.71, is quashed and set aside. The Industrial Tribunal, Vadodara is directed to first consider and decide the preliminary issue raised by the petitioner Company, that the respondents are not workmen, and if the Tribunal comes to conclusion that the respondents are workmen, only then the application Exh.65 of the respondents for interim relief, may be considered, on merits, in accordance with law.
Rule made absolute. No order as to costs.
Sd/-
(PARESH UPADHYAY, J.) MH Dave/27 Page 13 of 13