Gujarat High Court
Modex Trading India Private Limited vs Jitix Laxmanbhai Rathod on 17 March, 2025
NEUTRAL CITATION
C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 15060 of 2024
With
R/SPECIAL CIVIL APPLICATION NO. 14885 of 2024
FOR APPROVAL AND SIGNATURE:
HONOURABLE MRS. JUSTICE M. K. THAKKER
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Approved for Reporting Yes No
YES
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MODEX TRADING INDIA PRIVATE LIMITED
Versus
JITIX LAXMANBHAI RATHOD & ORS.
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Appearance:
LD.SR.ADV.MR.G.M.JOSHI WITH MR AYUSH BHANDARI FOR MR NIKUNT
K RAVAL(5558) for the Petitioner(s) No. 1
JWALIT B SONEJI(7895) for the Respondent(s) No. 1
MS SURBHI BHATI, AGP for the Respondent(s) No. 2,3
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CORAM:HONOURABLE MRS. JUSTICE M. K. THAKKER
Date : 17/03/2025
COMMON ORAL JUDGMENT
1. Since the issue raised in the these petitions are similar, they are being decided by a common judgment. The facts of Special Civil Application No.15060 of 2023 are taken for the purpose of adjudication.
2. Rule, returnable forthwith. Learned advocate Mr.Soneji and learned AGP Ms.Bhati waives service of notice of Rule on behalf of the respondent Nos.1 and 2 respectively.
3. Being aggrieved and dissatisfied with the order of Reference and proceedings of Reference being (L.C.A.) Nos.642 of 2023 and 643 of 2023 pending before the learned labour Court, Ahmedabad, the present petitions are filed.
4. It is the case of the petitioner that the respondent in Special Civil Application No.15060 of 2023 was appointed as Executive H.R. while the respondent in Special Civil Application No.14885 of 2024 was appointed as a Page 1 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined Supervisor cum Manager with the petitioner company, which is engaged in export, import and trading activities. On 18.05.2023, officials of the petitioner received a complaint via email from the subordinate colleagues regarding workplace harassment by the respondent. Consequently, an inquiry was initiated under the Prevention of Sexual Harassment (POSH) Committee wherein the respondent appeared and deny all the allegations.
4.1. That on 01.06.2023, the order of termination was passed by the petitioner company, which was subsequently challenged in the conciliation proceedings by the respondent. On 07.06.2023, the learned conciliator has issued the notice directing both the parties to remain present for the hearing scheduled on 19.06.2023. The petitioner did not appear and therefore, again the next date of conciliation was fixed on 26.06.2023. On that date as well, no representative from the petitioner company appeared. Consequently, after recording the petitioner's absence, the conciliator scheduled another hearing on 03.07.2023. As the petitioner once again failed to appear, failure report was submitted, and thereafter appropriate Government referred the dispute to the learned Labour Court.
4.2. The respondent filed its statement of claim below Exhibit 8 on 19.12.2023 before the learned labour Court and the petitioner has also filed its written Page 2 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined statement below Exhibit 9 on 13.02.2024. Additionally, the respondent has also produced the documentary evidence below Exhibit 10 on 30.02.2024 and has also filed a chief examination in form of an affidavit below Exhibit 11 on 30.04.2024. The cross examination of the respondent was completed by the petitioner on 11.06.2024. However, at the stage of the evidence of the petitioner, caption petition came to be filed under Articles 226 and 227 of the Constitution of India, challenging the Reference on the ground that without arriving to the subjective satisfaction that whether respondent was fall under the definition of Section 2(S) of the I.D.Act or not, the learned Assistant Labour Commissioner has referred the dispute to the learned labour Court.
5. Initially, this Court has issued the notice on 22.10.2024 and granted ad-interim relief, staying the Reference proceedings. However, on appearance of the respondent, an application was filed under Article 226(3) of the Constitution of India, praying to vacate the interim relief granted ex-parte. While hearing the said civil application, instead of deciding it separately, the matter was heard finally with the consent of the parties.
6. Heard the learned senior advocate Mr.G.M.Joshi with learned advocate Mr.Nikunt Raval for the petitioner and learned advocate Mr.Soneji for the respondent and learned AGP Ms.Surbhi Bhati for the respondent-State.
7. Learned senior advocate Mr.Joshi submits that Page 3 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined indisputably, the respondent's designation, salary, and nature of work are managerial in nature, and therefore, the respondent does not covered under the umbrella of Section 2(S) of the I.D.Act. Learned senior advocate Mr.Joshi submits that the dispute was referred to the learned Labour Court mechanically, without forming an opinion as to whether the concerned employee is a workman and without determining whether an industrial dispute exists or was apprehended. Learned senior advocate Mr.Joshi submits that it is incumbent duty of the State Government to reach to a conclusion that an industrial dispute exists or apprehended. Learned senior advocate Mr.Joshi further submits that indisputably, the respondent was working on the Managerial cadre and was drawing a salary beyond Rs.10,000/-.
7.1. Learned senior advocate Mr.Joshi submits that since the proceedings initiated do not fall within the ambit of the Industrial Disputes Act, the State Authority lacks jurisdiction to refer the dispute. However, without discharging the duty to examine whether the respondent falls within the definition of "workman" under the Industrial Disputes Act, the order of Reference was passed straightway.
7.2. Learned senior advocate Mr.Joshi submits that the power of appropriate authority to refer an industrial dispute for adjudication is not merely an administrative function; rather, the respondent authority must apply its mind before referring Page 4 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined industrial dispute for adjudication. Learned senior advocate Mr.Joshi submits that a Reference under Section 10 of the I.D. Act can only be made when the appropriate Government forms an opinion that an industrial dispute exists or is apprehended, without proper application of mind and on non-consideration of the fact that the respondent No.1 does not fall in the defination of "workman" under Section 2(S) of the I.D.Act, straightway the dispute was referred.
7.3. Learned senior advocate Mr.Joshi submits that the respondent no.1 has committed violation of anti- harassment policy and the, industrial dispute cannot override the findings of the POSH Committee, for which the charges against the respondent was proved.
7.4. Learned senior advocate Mr.Joshi, in support of his submissions, has relied upon the decisions rendered by the Apex Court in the case of Bharti Airtel Ltd. vs. A.S.Raghavendra, reported in (2024) 6 SCC 418, Prabhakar vs. Joint Director, Sericulture Department, reported in (2015) 15 SCC 1, National Engineering Ltd. vs.State of Rajasthan and ors., reported in (2000) 10 SCC 460, Lenin Kumar Ray vs. Express Publication, reported in (2024) SCC Online 2987, Mukand Ltd. vs. Mukand Staff and Officers Association, reported in (2004) 10 SCC 460, Secretary, Indian Tea Association vs. Ajit Kumar Barat and others, reported in (2000) 2 SCC 93.
Page 5 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined 7.5. Learned senior advocate Mr.Joshi submits that without forming an opinion as to existence of industrial dispute or apprehended straightway the Reference was made to the learned labour Court and therefore, the impugned Reference is required to be set aside.
8. Learned AGP Ms.Bhati appearing for the State submits that the petition filed at this stage is premature, as the learned Conciliation Officer has only to examine the fact whether an industrial dispute exists or not on the basis of the material which has been placed on record. Learned AGP Ms.Bhati contends that upon prima facie satisfaction, the appropriate Government was justified in referring the dispute for adjudication before the learned Labour Court. It is further submitted by the learned AGP that the function of the appropriate Government under Section 10 of the I.D.Act is administrative in nature, rather than judicial or quasi judicial. In performing this administrative function, the Government is not required to evaluate the merits of the dispute or assume the role of an adjudicating authority, as doing so would exceed the power conferred upon it under the Act.
8.1. Learned AGP Ms.Bhati has relied on the decision rendered by this Court in the case of Ralchem Limited vs. Ajit Balakrishna Kadu and others in Special Civil Application No.16172 of 2003, Aditya Birla Insulators vs. Commissioner of labour and ors in Letters Patent Appeal No.498 of 2013 and allied matters and submitted that still the adjudication has Page 6 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined not been done by the learned labour Court and therefore, it is open for the parties to raise their contention before the learned Court, who after examining the evidence decide the dispute which is referred for adjudication.
9. Learned advocate Mr.Soneji appearing for the respondent-workman has submitted that the petition is filed at the stage of evidence of the petitioner as the cross examination has already been concluded by the petitioner. It is submitted by the learned advocate Mr.Soneji that now the stage of the evidence of the petitioner and thereafter stage of the argument are left and therefore, the petitions are required to be dismissed as the same are filed at a belated and advance stage. Learned advocate Mr.Soneji submits that neither in the reply of the notice nor at the stage of written statement any defence is taken by the petitioner regarding jurisdictional aspect on the ground of workman, even during the cross examination also no question is put by the petitioner to establish that the respondent is not a workman under the definition of section 2(S) of the I.D.Act. The first time before this Court it is contended in the petition that the petitioner does cover under the umbrella of workman.
9.1. Learned advocate Mr.Soneji submits that the petitioner-employer has chosen not to remain present before the conciliation officer neither has placed any evidence on record before the learned labour Court. It Page 7 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined is submitted by the learned advocate Mr.Soneji that whether the respondent is workman or not is a mixed question of law and fact, which is required to be decided by the learned labour Court after scrutinizing the evidence which are placed by both the parties. Learned advocate Mr.Soneji submits that while discharging the administrative function under Section 10(1) of the I.D.Act, the Government Authority cannot be dwell into the merits of the case.
9.2. Learned advocate Mr.Soneji submits that so far as the arguments of constituting the committee under the POSH Act is concerned, the present respondent was not having any knowledge of constituting of committee under the POSH Act, straightway the order of termination is passed on 01.06.2023 without providing any opportunity of hearing and therefore, the same was subject matter of reference before the learned labour Court.
9.3. Learned advocate Mr.Soneji submits that on 05.06.2023 the respondent filed a complaint under the provisions of I.D.Act, which was numbered as IDR No.517 of 2023 and the conciliation proceedings were started and the notice for settlement was issued on 06.06.2023. Prior to that on 03.06.2023 the respondent made a representation to the petitioner requesting to take back him in service and asked to revoke the decision of terminating the service of the respondent. Reply to the said communication was Page 8 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined given by the petitioner on 12.06.2023 wherein also it is not mentioned by the petitioner that the respondent is not workman. During the conciliation proceedings, the petitioner did not remain present and therefore, learned authority has rightly referred the dispute to the learned labour Court.
9.4. Learned advocate Mr.Soneji submits that the respondent is a workman or not which is to be decided by the learned labour Court and therefore, the petition is required to be dismissed on that ground.
9.5. Learned advocate Mr.Soneji has relied on the decision rendered by the Apex Court in the case of Arikala Narasa Reddy vs. Venkata Ram Reddy Reddygari, reported in (2014) 5 SCC 312, Telco Convoy Drivers Mazdoor Sangh and Anr. vs. State of Bihar and others, reported in (1989) 3 SCC 271 and the decision rendered by the Division Bench of this Court in Letters Patent Appeal No.1805 of 2024 in the case of Gujarat Mazdoor Sabha through Secretary vs. Shah and Company through Proprietor Paresh H. Shah and ors. In view of the above decisions, learned advocate Mr.Soneji prays to dismiss the petition by directing the learned labour Court to conclude the Reference as expeditiously as possible.
10. Considering the submissions made by the learned advocates for the respective parties and the decision relied thereon, it is an undisputed fact that the complaint Page 9 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined came to be filed which was numbered as IDR No.517 of 2023 by the respondent contending that the respondent is serving in HR Department getting the monthly salary of Rs.54,000/- and services of the respondent came to be terminated on 01.06.2023. The nature of work which is stated in the complaint is of VISA cancellation process and technical work. Prior to making of complaint, the notice was issued by the respondent on 03.06.2023 requesting to revoke the termination order dated 01.06.2023. The said notice was replied on 12.06.2023 by the petitioner denying the allegations made in the notice however, no contention regarding the respondent does not fall under the definition of workman was taken.
10.1. On making the complaint before the learned Assistant Labour Commissioner, the notice was issued by the respondent directing to remain present on 19.06.2023, 26.03.2023 and 03.04.2023 however, on none of the occasions, the petitioner remained present before the learned Conciliation Officer. In absence of any assistance from the present petitioner, the opinion was formed that settlement is not possible and therefore, the dispute is required to be referred before the learned Reference Court.
10.2. Learned Assistant Labour Commissioner formed the terms of Reference on 03.04.2023 wherein it is stated whether the respondent is required to be reinstated to its original post by giving the benefit of back wages and other consequential benefits.
Page 10 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined 10.3. On referring the dispute before the learned labour Court, the statement of claim filed below Exhibit 7 on 19.12.2023 and the written statement was also filed by the petitioner on 13.02.2024. Thereafter, affidavit is filed below Exhibit 10 by the respondent on 30.04.2024 in the form of chief examination, and the cross examination of the respondent was concluded on 11.06.2024. When the stage of the evidence of the petitioner has reached, at that stage the present petitions are filed before this Court contending that no opinion was formed with regard to the existence or apprehension of the industrial dispute, which in the opinion of this Court is advance stage of adjudication of Reference.
11. At this stage, this Court would like to refer the decision relied by the learned advocates for the respective parties in the case of Bharti Airtel Ltd (supra), Prabhakar (supra), National Engineering Ltd (supra), Lenin Kumar Ray (supra), Mukand Ltd (supra), Secretary, Indian Tea Association (supra), Arikala Narasa Reddy (supra), Telco Convoy Drivers Mazdoor Sangh and Anr. (supra), Mazdoor Sabha through Secretary (supra). The guidelines which are issued by the Apex Court in the above cases are mainly as under:
"(i) The Government should satisfy itself, on the facts and circumstances brought to its notice, in its subjective opinion that an "industrial dispute" exists or is "apprehended";Page 11 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025
NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined
(ii) the factual existence of a dispute or its apprehension and the expediency of making reference are matters entirely for the Government to decide;
(iii) the order making a reference is an administrative act and it is not a judicial or a quasi-judicial act; and
(iv) the order of reference passed by the Government cannot be examined by the High Court in its jurisdiction under Article 226 of the Constitution to see if the Government had material before it to support the conclusion that the dispute existed or was apprehended."
12. This Court is of the view that when the appropriate Government makes a Reference of an industrial dispute for adjudication, it does not decide any question of fact or law. The only condition that must be satisfied for the exercise of power is the existence or apprehension of an industrial dispute. Once the Government is satisfied about this question, it acquires jurisdiction to refer the dispute for adjudication. However, the condition precedent to the formation of such opinion, that there should be an existing or apprehended 'industrial dispute', is imperative and the recitals of the existence or apprehension of the industrial dispute cannot preclude the Court to exercise its power of judicial review and to determine whether, in fact, there was any material before the 'appropriate Government' and if there was; whether the Government applied its mind in coming to the conclusion that an industrial dispute was in existence or was apprehended and it was expedient to make the reference. Therefore, an order of reference is open to judicial review if it is shown that the appropriate Page 12 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined Government had no material before it or it has not applied its mind to the material before it or has not taken into consideration certain vital facts which it ought to have taken into consideration.
12.1. The adequacy or the sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. If the action of the Government in making the reference is impugned by a party, it would be open to such a party to show that what was referred was not an industrial dispute and that the Tribunal had no jurisdiction to make the award. But if the dispute was an industrial dispute, its factual existence and the expediency of making a reference in the circumstances of a particular case are matters entirely for the Government to decide upon and it will not be competent for the Court to hold the reference is bad and therefore, the same is required to be quashed for want of jurisdiction merely because there was, in its opinion, no material before the Government on which it could have come to an affirmative conclusion on those matters.
13. In the instant case, the above ratio is to be applied then indisputably the petitioner did not participate in the conciliation proceedings. The reply and the written statement does not reflect the dispute, which is projected before this court and it is for the first time the contention raised that the respondent does not fall under the definition of section 2(S) of the I.D.Act. The cross Page 13 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined examination which was concluded there also not a single question put to establish that the respondent is not a workman.
14. The only contention of the petitioner is that as the salary and allowance exceeding Rs.10,000/- and his designation is of the managerial in nature, therefore, the respondent does not fall under the definition of Section 2(S) of the I.D.Act. In the opinion of this Court, on proper appreciation of material on record including the oral evidence, a decision could be rendered and the issue could be determined. The inquiry before the learned labour Commissioner is of summary nature and while exercising such power of summary nature, the labour Court cannot decide and examine factual matters relating to an issue as to whether or not the person concerned is a workman or not.
15. This Court is of the view that the definition of the employee is not of the great moment, what is important is the nature of his duties. If, the nature of the duty is manual, technical or clerical then the person would be a workman. Therefore, the workable test is whether the duty is performed by the concerned employee and functions discharged are similar to, or the same as, the duties and functions assigned to person falling in that category.
16. In the opinion of this Court, learned Assistant Commissioner has rightly not attached undue importance to the designation of the employee or the name assigned to the Class to which he belongs. It is always a matter of determining what the primary duties of the employees Page 14 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025 NEUTRAL CITATION C/SCA/15060/2024 JUDGMENT DATED: 17/03/2025 undefined are. In that background, this Court is of the view that the opinion which the Government forms being a subjective, the adequacy or sufficiency of the material on which the opinion was formed is beyond the pale of judicial scrutiny. The Court cannot canvass the order of Reference closely to see if there was any material before the Government to support its conclusion as if it was judicial or quasi judicial determination. On both the factors, the factual existence of industrial dispute and of the expediency to refer the industrial dispute for adjudication, the Government is the sole judge. Therefore, this Court did not find any infirmity in the impugned order of reference.
17. Considering the overall circumstances, these petitions fail. However, it is open for both the parties to raise their contention before the learned labour Court, who shall examine the same independently without being influenced by observations made in these matters.
18. The petitions being devoid of any merits are dismissed. Rule is discharged.
19. The learned advocate for the petitioner requested an extension of interim relief for a further period of two weeks. However, since this Court has dismissed the matter for being devoid of merits, the request is declined.
(M. K. THAKKER,J) M.M.MIRZA Page 15 of 15 Uploaded by M.M.MIRZA(HC01407) on Wed Mar 19 2025 Downloaded on : Wed Mar 19 22:42:50 IST 2025