Gujarat High Court
For Approval And Signature vs State Of Gujarat & on 7 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/10332/2009 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10332 of 2009
TO
SPECIAL CIVIL APPLICATION NO. 10335 of 2009
With
SPECIAL CIVIL APPLICATION NO. 10345 of 2009
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
1 Whether Reporters of Local Papers may be allowed Yes
to see the judgment ?
2 To be referred to the Reporter or not ? No
3 Whether their Lordships wish to see the fair copy of No
the judgment ?
4 Whether this case involves a substantial question of No
law as to the interpretation of the Constitution of
India or any order made thereunder ?
EXCEL CROP CARE LTD....Petitioner(s)
Versus
STATE OF GUJARAT & 1....Respondent(s)
Appearance:
MRS MAUNA M BHATT, ADVOCATE for the Petitioner(s) No. 1
(MR DP VORA), ADVOCATE for the Respondent(s) No. 2
MR SWAPNESHWAR GOUTAM AGP for the Respondent(s) No. 1
MR JS BRAHMBHATT, ADVOCATE for the Respondent(s) No. 2
CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 07/07/2017
ORAL JUDGMENT
Heard Mr. Bhatt, learned Senior Counsel for the petitioner, Mr. Goutam, learned AGP for the Page 1 HC-NIC Page 1 of 16 Created On Sun Jul 23 18:51:27 IST 2017 C/SCA/10332/2009 JUDGMENT respondent No.1 - State, and Mr. Brahmbhatt, learned advocate for the respondent No.2.
2. In this group of petitions, similar facts and similar issues / disputes are involved and that therefore, learned counsel for the respective parties have made common submissions with respect to all the petitions. Therefore, this group of petitions is decided by this common order. 2.1 For deciding this group of petitions, as specimen, the facts, grounds and relief prayed for in Special Civil Application No.10332 of 2009 is taken into consideration.
3. In present petitions, the petitioner company has prayed, inter-alia, that:-
"[a] this Hon'ble Court be pleased to issue any appropriate writ, order or direction quashing and setting aside the order dated 16-09-2009 passed by the respondent no.1 under the purported exercise of powers conferred by section 10(1) of the Industrial Disputes Act, 1947;
[b] that pending admission, hearing and final disposal of this petition, this Hon'ble Court may be pleased to stay the effect and implementation of the order dated 16-09-2009 (Ann.'T') passed by the respondent no.1 under the purported exercise of powers conferred by section 10(1) of the Industrial Disputes Act, 1947;
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[c] Be pleased to pass such other and further orders, as may deem just and proper in the facts and circumstances of the case."
4. So far as factual background is concerned, the petitioner has narrated relevant facts in the petitions. In the said factual background, the petitioner company has challenged the order of reference dated 16.09.2009 whereby appropriate government referred the dispute for adjudication. Copy of the impugned order of reference dated 16.09.2009. On reading the said order of reference, it comes out that appropriate government has referred the dispute related to termination of service of the concerned workmen. 4.1 It appears that according to the petitioner- company, concerned workmen was employed as badli worker with the company. The company claims that the company provide work to badli workers as and when work is available on account of unauthorized absence of permanent workman or if permanent workman avails leave.
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4.2 With reference to the contention of the
company that the concerned workmen were employed as badli workers and in light of the contention which are raised by the petitioner company against the order of reference passed by appropriate government (which is impugned in present petitions), it is necessary to take into account certain factual backdrop (i.e. facts of Special Civil Application No.10332 of 2009) which the company has mentioned thus:-
"[2] The brief facts are to the effect that during the period from 1981-89, at the stage of initial set up/ installation of the company's unit at Bhavnagar, the petitioner used to have around 650 permanent workmen. Most of the permanent workmen were the members of Excel Karmachari Union, a recognized union. It so happened in the relevant period from 1981-89 that besides the permanent workmen, the petitioner used to take in employment temporary/casual/voucher workmen at random. Over a period of time, therefore, during the relevant period from 1981-89, a large number of workmen came to have work and the petitioner company also used to engage such workmen depending on its exigency of work. While engaging temporary/casual/voucher workmen, the principle of seniority was never followed, since for example one workman reported for work in January 1981 and worked for a few days and thereafter did not report for work for over a very time and his seniority vis-a-vis such other workmen on the basis of his joining the employment in January 1981 was, therefore, not considered for allotment of temporary/casual work. Whoever was available on a particular day was taken on job and provided such job. If the total number of such temporary/casual/voucher workmen were to be totaled up for the period from 1981-89, it happened that around 1400 such workmen were temporarily/casually employed depending on the exigency of the work and the availability of the workmen concerned.
[5] In the above background, therefore, with a view to
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find out an amicable settlement, the petitioner on one hand and the recognized union on the other hand had protracted negotiations to settle the matter and in the course of negotiation ultimately, a rationalized and logical formula was arrived at. In the industrial disputes parlance "240 days" has acquired some significance, but it also contemplates that any workman should have worked atleast for 240 days in one year only. The petitioner and the respondent no.1 recognised union, therefore, while keeping the sacrosanct figure of "240 days" evolved a formula extending the period of one year to nine years. Therefore, it was so agreed that those of such workmen who might have put in 240 days of work not in one year but over a period of 9 years should be segregated and in this manner determined the number of days put in by all the workmen concerned over a period of 9 years instead of one year only, rather than trying to resolve the dispute, based on the technical principle of seniority which was likely to cause more heart-burning amongst very large number of workmen concerned.
[6] Under the above peculiar circumstances, the principle of resolving the issues based on seniority only was not found advisable nor feasible. Large number of permanent workmen in the petitioner also gave backing to the said settlement arrived at on the above basis. In view of this peculiar scenario, a settlement was arrived at between the petitioner and the recognized union. The said settlement envisaged preparation of two lists. First list termed as Ann. A was with regard to those workmen who had put in atleast 240 days of total work during the period from 1981-89 and the second list termed as Ann. B gave details with regard to lump sum ex gratia amount payable to the left out workmen, who had not worked even for 240 days.
[7] It was further envisaged in the settlement that from the statement at Ann. A to the said settlement workmen at Sr.No.1 to 30 will be employed by the petitioner as permanent workmen provided they are medically found fit and have not crossed the age of 60. The workmen at Sr. No.31 onwards shall be treated as badli workmen to be provided work in the absence of permanent unskilled workmen. These badli workmen were to be treated at par for benefit with the permanent workmen of the petitioner except providing uniform, shoes, gift, ex gratia payment or anything which the petitioner gave of its own and not as a part of statutory requirement. Further, preference in employment was to be given to those badli workers. The said settlement dated 18-6-1992 along with the annexure was filed before the Hon'ble Tribunal by a joint application of the petitioner and the respondent no.1 union. The application also stated that the settlement should be given wide publicity so that the interests of all concerned are protected.
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[8] The petitioner submits that after hearing all concerned, the Hon'ble Industrial Tribunal observed that the settlement was just, fair and bonafide and in the interest of workmen, under its award dated 11-10-2002. However, without any reason, the Hon'ble Industrial Tribunal substituted the list at Ann.A to the settlement and held that the benefit of the settlement should be given to 135 workmen instead of 96 workmen as per the revised list submitted earlier. By the said award, the Hon'ble Industrial Tribunal also held that the lump sum ex gratia amount should be doubled and thereby also altered Ann.B to the settlement."
4.3 The petitioner has made reference of certain proceeding which was pending before the learned Tribunal. In the said reference cases, the learned Tribunal was required to adjudicate and decide below mentioned two issues (which constitute terms of said/pending reference):-
"[i] Whether a list of workmen who had worked in the past and are working in the company as at present as temporary / voucher should or should not be prepared on the basis of seniority based on their respective date of joining in the company?
[ii] Whether such workmen should or should not be compensated if they are made permanent on the basis of seniority?"
4.4 In this backdrop, the petitioner company has challenged order of reference dated 16.09.2009 passed by appropriate government. 4.5 According to the petitioner company, the appropriate government has referred dispute/claim Page 6 HC-NIC Page 6 of 16 Created On Sun Jul 23 18:51:27 IST 2017 C/SCA/10332/2009 JUDGMENT for permanency and the claimants' seniority for allotment of work and that the appropriate government is not justified in passing impugned order dated 16.09.2009 because the claim of the claimants is covered by the settlement which came to be arrived at between the company and the union/workman and also because the machinery/ committee to resolve the disputes of badli workers is already constituted and the said committee can examine the dispute and resolves the grievance of the badli worker.
The said submission is the sole ground of attack against the order of reference. It is based on the petitioner's understanding that dispute about permanency and allotment of work as per seniority is referred for adjudication.
However, the fact is otherwise and that is revealed from the terms of reference. 4.6 If the dispute raised by the claimants was, in any manner, related to status of the claimants and/or demand for allotment of work according to Page 7 HC-NIC Page 7 of 16 Created On Sun Jul 23 18:51:27 IST 2017 C/SCA/10332/2009 JUDGMENT the schedule of seniority or such other dispute was, in any manner, connected with the subject of permanency of badli worker, then, the contention of the petitioner company against impugned order of reference (viz. that in view of settlement between the union and the company), the order of reference could not have been made and order of reference are not justified and consequently, the reference would not be maintainable, could have been considered by this Court.
However, when the order of reference dated 16.09.2009 is examined, it comes out that the dispute which is referred by appropriate government is altogether different inasmuch as the claimants appear to have approached the appropriate government with the dispute that the company illegally terminated their service and that therefore, they should be reinstated in service with consequential benefits.
The appropriate government considered the said demand and dispute raised by the concerned workmen and thereafter, passed order of reference Page 8 HC-NIC Page 8 of 16 Created On Sun Jul 23 18:51:27 IST 2017 C/SCA/10332/2009 JUDGMENT dated 16.09.2009 with above quoted terms of reference.
4.7 It is pertinent that the subject of claimants' termination from service and/or grievance with regard to termination of claimants' service is different and not connected with the dispute related to permanency in service or regularization in service of badli worker or claim for allotment of work in accordance with the schedule of seniority determined by settlement.
4.8 Under the circumstances, the contention that in view of the settlement arrived, appropriate government could not and should not have passed the order of reference dated 16.09.2009, cannot be accepted.
5. In this view of the matter, Mr. Bhatt, learned Senior Counsel for the petitioner put forward another/alternative contention viz. that Page 9 HC-NIC Page 9 of 16 Created On Sun Jul 23 18:51:27 IST 2017 C/SCA/10332/2009 JUDGMENT the date on which the claimants raised the allegation and dispute about alleged termination, the company had not terminated the service of the claimants and even after the date of order of reference, the claimants continued in service with the company/the claimants had reported for and they were assigned work and they had preformed duty.
Mr. Bhatt, learned Senior Counsel, also opposed the order of reference on the ground of inordinate delay in raising the dispute.
He submitted that according to the allegation, their service came to be allegedly terminated somewhere in 1989 whereas the claimants approached appropriate government with industrial dispute in 2007 and that therefore, such stale claims and disputes should not have been referred.
6. There might be substance in the contention of the petitioner company. The petitioner company might be right in its claim that in 1989 or at Page 10 HC-NIC Page 10 of 16 Created On Sun Jul 23 18:51:27 IST 2017 C/SCA/10332/2009 JUDGMENT any point thereafter it had never terminated the service of the claimants and that therefore, any case for raising dispute about alleged termination never arose.
However, the said contention cannot be considered and decided by this Court in writ jurisdiction, much less by the conciliation officer and/or appropriate government.
The said contention involves several disputed questions of fact, which would necessitate oral and documentary evidence (from both sides) for resolution and that process can be undertaken only by labour Court/industrial tribunal.
The contention of the petitioner company against the order of reference on the ground of delay also may have some substance.
However, said contentions are such which cannot be examined much less decided by appropriate government.
The said contentions are such which fall within domain of learned Labour Court and can be decided only by learned Labour Court or Page 11 HC-NIC Page 11 of 16 Created On Sun Jul 23 18:51:27 IST 2017 C/SCA/10332/2009 JUDGMENT Industrial Tribunal.
Of course, the petitioner company can raise said objections before learned Labour Court and it can contend that the claimants' service has not been terminated by the company and that therefore, there is no cause of action and the case or dispute or grievance does not arise and that therefore, order of reference is bad in law and unsustainable.
The company can also oppose the order of reference on the ground of delay and claim that such stale dispute cannot be raised and should not be entertained.
If such contentions and objections are raised, the learned Labour Court would decide the same in accordance with law.
However, this proceedings are not appropriate remedy to decide such contentions. 6.1 In this regard, a profitable reference may be had to the observations by Hon'ble Apex Court in case of Telco Convoy Drivers Mazdoor Sangh & Anr.
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v. State of Bihar & Ors. [AIR 1989 SC 1565]
wherein Hon'ble Apex Court observed, inter alia, that:-
"12. It is, however, submitted on behalf of TELCO that unless there is relationship of employer and employees or, in other words, unless those who are raising the disputes are work- men, there cannot be any existence of industrial dispute within the meaning of the term as defined in section 2(k) of the Act. It is urged that in order to form an opinion as to whether an industrial dispute exists or is apprehended, one of the factors that has to be considered by the Government is whether the persons who are raising the disputes are workmen or not within the meaning of the definition as contained in section 2(k) of the Act.
13. Attractive though the contention is, we regret, we are unable to accept the same. It is now well settled that, while exercising power under section 10(1) of the Act, the function of the appropriate Government is an administrative function and not a judicial or quasijudicial function, and that in performing this administrative function the Government cannot delve into the merits of the dispute and take upon itself the determination of the lis, which would certainly be in excess of the power conferred on it by section 10 of the Act. See Ram Avtar Sharma v. State of Haryana, [1985] 3 SCR 686; M.P. Irrigation Kararnchari Sangh v. The State of M.P., [1985] 2 SCR 1019 and Shambhu Nath Goyal v. Bank of Baroda, Jullundur, [1978] 2 SCR 793.
14. Applying the principle laid down by this Court in the above decisions, there can be no doubt that the Government was not justified in deciding the dispute. Where, as in the instant case, the dispute is 808 whether the person raising the dispute are workmen or not, the same cannot be decided by the Government in exercise of its administrative function under section 10(1) of the Act. As has been held in M.P. Irrigation Karamchari Sangh's case (supra), there may be exceptional cases in which the State Government may, on a proper examination of the demand, come to a conclusion that the demands are either perverse or frivolous and do not merit a reference. Further, the Government should be very slow to attempt an examination of the demand with a view to declining reference and Courts will always be vigilant whenever the Government attempts to usurp the powers of the Tribunal for adjudication of valid disputes, and that to allow the Government to do so would be to render section 10 and section 12(5) of the Act nugatory.
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15. We are, therefore, of the view that the State Government, which is the appropriate Government, was not justified in adjudicating the dispute, namely, whether the convoy drivers are workmen or employees of TELCO or not and, accordingly, the impugned orders of the Deputy Labour Commissioner acting on behalf of the Government and that of the Government itself cannot be sustained.
16. It has been already stated that we had given one more chance to the Government to reconsider the matter ,red the Government after reconsideration has come to the same conclusion that the convoy drivers are not workmen of TELCO thereby adjudicating the dispute itself. After having considered the facts and circumstances of the case and having given our best consideration in the matter, we are of the view that the dispute should be adjudicated by the Industrial Tribunal and, as the Government has persistently declined to make a reference under section 10(1) of the Act, we think we should direct the Government to make such a reference. In several instances this Court had to direct the Government to make a reference under section 10(1) when the Government had declined to make such a reference and this Court was of the view that such a reference should have been made. See Sankari Cement Alai Thozhilalar Munnetra Sangam v. Government of Tamil Nnadu, [1983] 1 LLJ 460; Ram Avtar Sharma v. State of Haryana, [1985] 3 SCR 686; M.P. Irrigation Karamchari Sangh v. The State of M.P. [1985] 2 SCR 1019 and Nirmal Singh v. State of Punjab, [1984] 2 LLJ396."
7. Therefore, with the clarification that the company may raise such contentions before the learned Labour Court who will decide the same and pass appropriate order with regard to the order of reference and maintainability of the reference proceedings, this group of petitions deserves to be disposed of.
8. Therefore, following order is passed:-
Page 14 HC-NIC Page 14 of 16 Created On Sun Jul 23 18:51:27 IST 2017 C/SCA/10332/2009 JUDGMENT [a] In light of the decision by Hon'ble Apex Court in case of Telco Convoy Drivers Mazdoor Sangh & Anr. (supra), the petitions are not entertained at this stage.
[a-1] Since the petitioner company has approached this Court against order of reference whereby the appropriate government has referred the dispute about the alleged termination of the claimants workmen, the petitions do not deserve to be entertained at this stage and appropriate government's decision cannot be faulted at this stage.
[a-2] The contentions raised by the petitioner company against the order of reference are such which can be decided by learned Labour Court and not by appropriate government or by this Court in writ proceedings.
[a-3] Therefore, on the said limit ground, the
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petitions are disposed of.
[b] It is clarified that this Court has not
entered into the merits of the allegations of the claimants or contentions of the company.
[b-1] It is also clarified that it will be open to the company to raise all such contentions as may be available in law against maintainability of the order of reference as well as the reference proceedings.
With aforesaid observations and
clarifications, present petitions are disposed
of. Rule is discharged.
Sd/-
(K.M.THAKER, J.)
kdc
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