Gujarat High Court
State Of Gujarat vs Govt. Photo Litho Press on 6 July, 2017
Author: K.M.Thaker
Bench: K.M.Thaker
C/SCA/8333/1991 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 8333 of 1991
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STATE OF GUJARAT....Petitioner(s)
Versus
GOVT. PHOTO LITHO PRESS....Respondent(s)
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Appearance:
MR VISHRUT JANI, AGP for the Petitioner(s) No. 1
(MR KS JHAVERI), ADVOCATE for the Respondent(s) No. 1
ADVOCATE NOTICE SERVED for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE K.M.THAKER
Date : 06/07/2017
ORAL ORDER
1. Heard Mr.Jani, learned AGP for the petitioner State. No one has attended final hearing on behalf of the respondent union.
2. In present petition, the petitioner State has challenged award dated 30.11.1983 passed by the learned Labour Court at Ahmedabad in Reference No.156 of 1982. The petitioner State has also challenged order dated 23.1.1991 passed by the learned Labour Court in Misc. Civil Application No.82 of 1984.
3. On examination of the record and more Page 1 of 9 HC-NIC Page 1 of 9 Created On Sun Jul 23 15:46:01 IST 2017 C/SCA/8333/1991 ORDER particularly on reading the award, it has emerged that on behalf of the employees working in drawing section of the Government Photo Litho Press, dispute was raised by present respondent union in respect of the demand that working hours of the employees employed in drawing section should be reduced to 6 hours (from 7 ½ hours) and should be synchronized within the working hours for other employees (of other department in the Press) from 10.30 a.m. to 5.30 p.m. or alternatively the said employees should be paid special allowance at Rs.26/.
4. The petitioner State did not accept the said demand. Therefore, conciliation proceedings under the Act commenced and on its failure appropriate government referred the dispute for adjudication to the learned Labour Court at Ahmedabad.
5. The learned Labour Court adjudicated the dispute and vide impugned award dated 30.11.1983, the learned Labour Court directed the petitioner Page 2 of 9 HC-NIC Page 2 of 9 Created On Sun Jul 23 15:46:01 IST 2017 C/SCA/8333/1991 ORDER State to reduce the working hours of employees employed in drawing section to 6 hours from 7 ½ hours and to fix the time from 10.30 a.m. to 5.30 p.m. or alternatively to pay Rs.26/ as special allowance to the said employees.
6. Feeling aggrieved by the said award, the petitioner State filed present petition.
7. As mentioned above, no one has appeared for the respondent.
8. The petition is not contested at the stage of final hearing.
9. Before proceeding further, it is not out of place to note that timings of shift or the matter relating to working hours of employees is within the purview of employer's discretion, of course subject to maximum hours prescribed by law. If the establishment falls within purview of definition of the term 'factory', then maximum working hours should be fixed in light of the terms of the Factories Act, whereas in respect of Page 3 of 9 HC-NIC Page 3 of 9 Created On Sun Jul 23 15:46:01 IST 2017 C/SCA/8333/1991 ORDER the establishment which would be covered by the provisions of the Bombay Shops and Establishment Act, the employer would be obliged to fix working hours within the maximum time permitted under the Bombay Shops and Establishment Act and on the working hours of the employees will have to be fixed accordingly. The employer would be at liberty to fix working hours to suit its activity, so long as the working hours are within the maximum permissible limit prescribed by law.
10. So far as the employees concerned in present petition are concerned, their place of employment would be covered within the purview of definition of the term 'factory' under the Factories Act and that, therefore, in view of Section 54, the employer will be entitled to fix the working hours / shift timings, in view of Section 54 and within the purview of maximum permissible limit of 89 hours as prescribed under the Factories Act. In light of the provisions under Section 54 read with Sections 55 and 56, the employer can Page 4 of 9 HC-NIC Page 4 of 9 Created On Sun Jul 23 15:46:01 IST 2017 C/SCA/8333/1991 ORDER also provide for spread hours. So long as prescribed limit of maximum number of working hours - as prescribed by law - is honoured and followed by the employer, there will be little room for Court to interfere with employer's discretion and decision.
11. On reading the impugned award, it comes out that the learned Labour Court adjudicated the matter without having regard to the said aspects and the learned Labour Court decided the case only on the premise that in other sections the working hours of the employees were different than the working hours fixed by the employer in case of employees working in drawing section. This is done without comparing the working patter of different sections / departments and nature of work in different departments and/or difference of wages of employees in different departments. Only on above mentioned ground the learned Labour Court interfered with the employer's prerogative and discretion.
Page 5 of 9 HC-NIC Page 5 of 9 Created On Sun Jul 23 15:46:01 IST 2017 C/SCA/8333/1991 ORDER
12. Besides this, another relevant aspect which emerges in present case is that the subject matter of the dispute i.e. working hours would not fall within the jurisdiction of learned Labour Court.
13. According to the provisions under the Industrial Disputes Act, the subjects for adjudication which would fall within purview of Labour Courts are prescribed under Second Schedule of the Act which is framed in light of the provisions contained under Section 7.
14. The subject of hours of work is not covered within any item mentioned in Second Schedule.
15. On the other hand the subject which would fall within purview of jurisdiction of Industrial Tribunal, is prescribed under Third Schedule which is framed in light of Section 7A of the Act.
16. On reading Third Schedule it comes out Page 6 of 9 HC-NIC Page 6 of 9 Created On Sun Jul 23 15:46:01 IST 2017 C/SCA/8333/1991 ORDER clearly that subject related to 'hours of work and rest intervals' falls within purview of Third Schedule (at Item No.3 in Third Schedule) and that, therefore, the said subject would come within purview of Industrial Tribunal and not of Labour Court and that, therefore, the Labour Court ought to have decided this issue before passing the award.
17. Even the said aspect is not considered by the learned Labour Court while adjudicating and deciding the reference and while passing the award. The said issues would arise in present case in light of the challenge against the award. It is another matter that the said contentions have been raised in the petition.
18. Be that as it may it is not necessary to decide the said issues and controversy in view of the submissions by learned AGP and in light of the letter dated 3.7.2017.
19. On strength of the communication dated Page 7 of 9 HC-NIC Page 7 of 9 Created On Sun Jul 23 15:46:01 IST 2017 C/SCA/8333/1991 ORDER 3.7.2017, Mr.Jani, learned AGP submitted that all employees in drawing sections have retired on superannuation. Thereafter the said posts have not been filled up and actually the posts have been abolished in light of subsequent automation and modernization of the department. According to learned AGP, the union is also not active in the petitioner Litho Press and any cause to prosecute the petition now does not survive and in light of subsequent developments the petition is rendered infructuous. Learned AGP tendered communication dated 3.7.2017 on record.
20. In view of the said communication, Mr.Jani, learned AGP submitted that the petition is rendered infructuous and it may be disposed of accordingly.
21. In view of the said submission by learned AGP, present petition is disposed of as infructuous. Rule is discharged. Adinterim relief, if any, stands vacated.
Page 8 of 9 HC-NIC Page 8 of 9 Created On Sun Jul 23 15:46:01 IST 2017 C/SCA/8333/1991 ORDER (K.M.THAKER, J.) Bharat Page 9 of 9 HC-NIC Page 9 of 9 Created On Sun Jul 23 15:46:01 IST 2017