Gujarat High Court
Gujarat Mazdoor Manch Thro' General ... vs Gujarat Composite Limited & on 30 January, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/7180/2001 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 7180 of 2001
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE K.M.THAKER Sd/-
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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 ?
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GUJARAT MAZDOOR MANCH THRO' GENERAL SECRETARY, &
1....Petitioner(s)
Versus
GUJARAT COMPOSITE LIMITED & 1....Respondent(s)
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Appearance:
MR VIVEK V. BHAMARE, ADVOCATE FOR MR. MOHSINALI SAIYED,
ADVOCATE for the Petitioner(s) No. 1 - 2
NOTICE SERVED for the Petitioner(s) No. 1 - 2
MR SOAHAM PATEL, AGP for the Respondent(s) No. 2
MR. RISHIN R PATEL, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 30/01/2017
ORAL JUDGMENT
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HC-NIC Page 1 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT
1. Heard Mr.Vivek V. Bhamare, learned advocate for Mr.Saiyed, learned advocate for the petitioners and Mr.Rishin Patel, learned advocate for respondent No.1 as well as Mr.Soaham Patel, learned AGP for respondent No.2.
2. The petitioner union has, on behalf of the concerned 130 workmen, prayed, inter alia, that:
"11(A) That Your Lordships be pleased to issue an order and or direction or writ in the nature of mandamus and or any other appropriate writ, order or direction directing the respondent No.2 to immediately take necessary action against the respondent No.1 company for practising unfair labour practice, punishable under section 25(U) of the Industrial Disputes Act, 1947."
3. From the relief prayed for by the petitioner union, on behalf of the concerned 130 workmen, more particularly from the request that "direct respondent No.1 company to 'reinstate' the 130 workmen who are arbitrarily and verbally 'discontinued' from the service of the respondent company from 25.7.2001", it becomes clear that the petition is filed against alleged termination of about 130 workmen and it also becomes clear that the petitioner union, on behalf of the Page 2 of 13 HC-NIC Page 2 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT workmen, has prayed for direction against the respondent company to reinstate the said 130 workmen.
4. An industrial dispute with the allegation that the service of 130 workmen have been illegally terminated, would involve and raise several disputed issues of facts including the issue as to whether services of the concerned workmen have been terminated or not and if the services are terminated whether the services have been terminated in accordance with law and after following prescribed procedure, or not.
5. Such disputed issues of fact can be established only with aid of relevant and cogent documentary and oral evidence and it would also necessitate crossexamination of the workmen. Such process would not be practicable or feasible in writ proceedings.
6. In present case, the opponent company has filed affidavit, wherein it is contended, inter Page 3 of 13 HC-NIC Page 3 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT alia, that:
"2. At the outset, it is submitted that the present petition under Article 226 of the Constitution of India does not deserve to be entertained and the same deserves to be dismissed since:
(i) The petitioner Union has specific and express remedy available under the industrial law for the grievances made in the petition;
(ii) The petition involves disputes questions of fact which cannot be tried and decided in the present proceedings under Article 226 of the Constitution of India;
It is further submitted that the petitioner Union, though does not command members of significant and substantial number of workmen employed by the respondent company, with the object of attracting the members is indulging in unfair labour practice and at the instigation of the petitioner Union some of the workman have indulged in disorderly, violent and indisciplined behaviour. The respondent Company made a representation to the Commissioner of Labour on 7.7.2001, a copy of which is annexed hereto and marked as AnnexureI against the unfair labour practice adopted by the petitioner Union. The respondent company has also given complaints to the Police Inspector of Sabarmati Police Station and the Deputy Commissioner of Police on 14.7.2001 and 16.7.2001 respectively regarding the apprehended breach of peace due to the activities of the petitioner Union. Copies of the said complaints are annexed hereto and marked as AnnexureII. Even the officers of the Company are received anonymous telephone calls holding out threats on their lives. It is, therefore, submitted that it is the petitioner Union which is guilty of committing gross and serious unfair labour practice for which it deserves to be dealt with in accordance with law.
3. Without prejudice to the aforesaid contentions, dealing with the petition parawise, it is submitted as follows:"
7. Besides this, it is also relevant to note that in the petition, the petitioner union, on behalf of the concerned 130 workmen, has averred and alleged that:
"1. That the petitioner is a registered Trade Union under the Trade Unions Act, 1926 and is functioning in various industrial establishments in the State of Gujarat. Gujarat Page 4 of 13 HC-NIC Page 4 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT Composite Ltd. Digvijay Nagar, Ranip, Ahmedabad, (hereinafter referred to as 'the respondent No.1' or 'the respondentCompany') is one of establishment engaged in manufacturing of cement and Fibre Products where the majority of the workmen have joined the petitionerunion. The employees had raised an industrial dispute which was registered as Reference I.T. No.482 of 1992, demanding permanency of the services of the employees and grant of other benefits, which was adjudicated upon by the Tribunal, Ahmedabad. There were 161 employees involved in the said Reference, wherein the Industrial Tribunal adjudicated upon the Reference and held that these employees were regular and permanent employees of Shree Digvijay Cement Company Limited, which is now known as 'Gujarat Composite Limited', the respondent No.1 Company. The said Award is under challenged by the respondent Company in Special Civil Application No.8072 of 1997. The petition is admitted but no interim relief has been granted.
One of the workman namely Shri Prabhakar Nair, who has been working in the Cement Mill Division, has been dismissed from 25.6.2001. It is pertaining to state here that all these workmen have been dismissed without any inquiry and without giving any show cause notice or without affording any reasonable opportunity worth its name.
4. It is respectfully submitted that 130 employees who are branded as Badli employees have been working from 1982 onwards and the Industrial Tribunal has decided the issue in favour of the workmen that they are regular and permanent workmen of the company. The said Award is under challenged as mentioned above in this petition. The Hon. High Court has not granted any relief. However, these 130 employees have been arbitrarily discontinued from the services of the company from 25.7.2001 onwards. It may be mentioned here that in the month of June, 2001 all the employees of the respondent company organized under the banner of Gujarat Mazdoor Manch and from June, 2001 itself, the management started victimizing these employees and not giving work to them on the ground that they are Badli workers and from 25.7.2001 onwards, all these 130 employees have been discontinued from the services of the company. It may be mentioned here that according to the information of the petitionerunion, the respondent company has entered into some understanding with the original espousing union namely Gujarat Mazdoor Panchayat and has started giving regular work to the contract labours who were working in one of the contractor namely Radhey and Company. These contract labour is being given regular work with the understanding with the erstwhile Gujarat Mazdoor Panchayat and these 130 employees have been discontinued from the services with effect from 25.7.2001 onwards. This is a gross case of unfair labour practice adopted by the management only with a view to see that the workmen continue their association with the union which the management likes."
8. As against the said averments and allegations Page 5 of 13 HC-NIC Page 5 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT in the petition and more particularly with regard to the allegations in paragraph No.4, the company has averred and stated in its reply affidavit that:
"8. With reference to para 4 of the petition, I say that the suggestion of the petitioner Union that 130 employees are branded as badli workmen is incorrect and misconceived. They are in fact badli workmen borne on the muster roll of badli workmen and there is no question of they being branded as badli workmen. Whereas it is true that the Tribunal has passed award in favour of those 130 workmen, it is not correct that this Hon'ble Court has not granted any relief in the writ petition filed by the respondent No.1 company. As stated earlier, the writ petition being Special Civil Application No.8072 of 1997 has been admitted and interim stay has been granted by this Hon'ble Court. It is denied that 130 employees have been arbitrarily discontinued from service of the Company from 25.7.2001. I am not aware and therefore deny that all the employees of the respondent Company organized under the banner of Gujarat Mazdoor Munch in June 2001. It is denied that the management started victimizing these employees by not giving work to them from 25.7.2001 on the ground that they are badli workmen. It is denied that those 130 employees have been discontinued from service of the Company."
9. The details from the memo of petition and reply affidavit of the company have been quoted to illustrate the fact that present petition involves and raises several disputed questions of fact which would necessitate documentary as well as oral evidence including crossexamination.
10. Under the circumstances, it is not practicable or possible to adjudicate the dispute raised and claim made in the petition, in writ Page 6 of 13 HC-NIC Page 6 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT proceeding.
11. This Court is conscious of the fact that almost 15 years have passed since the petition came to be admitted and it would be burden for the employees to be relegated to the statutory remedy under the provisions of the Industrial Disputes Act, 1947. However, from submissions by learned advocates for the contesting parties it has emerged that it would not be possible to decide rival contentions and factual / aspects - more particularly the allegations and factum about alleged termination without sufficient evidence.
12. Besides this, it is also necessary to mention, that during past three adjournments / hearing, the Court had informed learned advocate for the petitioner union that the dispute is not capable of being adjudicated in writ proceeding and that the workmen should raise dispute and get the same adjudicated before appropriate forum. Further, the company has raised objection against Page 7 of 13 HC-NIC Page 7 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT maintainability of the petition on ground of alternative remedy and on the ground that the disputed issues are involved in the petition way back in October 2001 when the company filed reply affidavit. Thus, the workmen / union were, since then, aware about this handicap.
13. Despite this position, the petitioner union, for some reason, preferred to maintain the petition and did not consider the option, rather the need, of raising industrial dispute against the alleged termination.
14. At this stage, it would not be out of place to mention that on behalf of the workmen concerned in present petition, a dispute was raised in 1992 with regard to the demand for appropriate wages and benefits.
15. The said dispute came to be decided vide award dated 4.8.1997. A petition, i.e. Special Civil Application No.8072 of 1997 is filed by the company against the said award dated 4.8.1997 in Page 8 of 13 HC-NIC Page 8 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT Reference (IT) No.482 of 1992, wherein the said award is challenged.
16. The said petition is pending in the cause list for final hearing.
17. At the relevant time, when the alleged termination took place i.e. in 2001, the said petition, i.e. Special Civil Application No.8072 of 1997 was pending. It appears that probably, in view of the pendency of the said dispute, present petition came to be admitted.
18. Even on final decision in respect of the said other petition, i.e. Special Civil Application No.8072 of 1997, the dispute involved in present petition, i.e. Special Civil Application No.7180 of 2001 would not get resolved inasmuch as the issue with regard to the alleged termination of the workmen is not one of the issues or subject matter of the said other petition, i.e. Special Civil Application No.8072 of 1997.
19. So as to determine the dispute raised in Page 9 of 13 HC-NIC Page 9 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT present petition, i.e. Special Civil Application No.7189 of 2001, it would be necessary to decide as to whether the company terminated services of the concerned 130 workmen or not and if at all it is the company who terminated their services, then the second issue which would arise for determination is whether the services of the claimants were terminated in accordance with law or not.
20. From the reply affidavit filed by the company, it appears that some of 130 workmen were, allegedly, not in employment with the company on the date of alleged termination and that some of them were dismissed from service even before the date of alleged termination. Thus, the disputed issue with regard to the said persons would also arise.
21. Above mentioned aspects bring out that it would not be feasible or practicable to entertain the dispute raised by the claimants in present Page 10 of 13 HC-NIC Page 10 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT petition, i.e. Special Civil Application No.7180 of 2001 in exercise of writ jurisdiction. Therefore, though such long time has passed since the union filed present petition, there is no alternative but to relegate the union / concerned workmen to statutory alternative remedy, i.e. to raise industrial dispute. Therefore, following order is passed:
(a) The captioned petition, i.e. Special Civil Application No.7180 of 2001 is not entertained and the claimants are relegated to statutory alternative remedy.
(b) It is clarified that present petition is not entertained on the ground that the petition involves and raises several disputed issues of fact and on the ground that the statutory remedy is available before specially created forum where documentary and oral evidence from both sides can be received and recorded by the learned Labour Court and the controversy as Page 11 of 13 HC-NIC Page 11 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT well as the dispute between the parties can be adjudicated and decided in light of such oral and documentary evidence.
(c) In this view of the matter, the Court has not entered into the merits of rival contentions and the disputes / claims raised in the petition.
(d) The concerned workmen may raise industrial dispute in accordance with law.
(e) It is also clarified that in view of the fact that the concerned claimants, through the union, i.e. upon alleged illegal termination, had initiated present proceeding, any issue or dispute on ground of delay, limitation or laches or acquiescence would not arise and the dispute would not be frustrated on such ground/s.
The claimants have been vigilant to raise dispute against alleged termination and there has not been any delay or negligence Page 12 of 13 HC-NIC Page 12 of 13 Created On Sun Aug 13 04:26:07 IST 2017 C/SCA/7180/2001 JUDGMENT on their part in raising dispute.
(f) It is further clarified that having regard to the fact that such long time has passed since the dispute arose, appropriate Government and the learned Court (where the dispute is referred for adjudication) will ensure that the proceedings are concluded as expeditiously as possible and by eliminating avoidable adjournments.
With the aforesaid clarifications and observations, the petition is disposed of. The claimants are relegated to statutory alternative remedy. Rule is discharged.
Sd/ (K.M.THAKER, J.) Bharat Page 13 of 13 HC-NIC Page 13 of 13 Created On Sun Aug 13 04:26:07 IST 2017