Gujarat High Court
Omkarsinh Forensinh Thakur vs Manager, Parasnath Chemicals on 6 February, 2020
Author: Sonia Gokani
Bench: Sonia Gokani
C/SCA/3266/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3266 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3273 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3275 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3279 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 3290 of 2020
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OMKARSINH FORENSINH THAKUR
Versus
MANAGER, PARASNATH CHEMICALS
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Appearance:
MR K R MISHRA(6312) for the Petitioner(s) No. 1
for the Respondent(s) No. 1
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CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 06/02/2020
COMMON ORAL ORDER
1. As there are identical questions of law and facts are involved in these petitions, the same are being decided together by a common order.
2. The brief facts leading to the present petitions are drawn from Special Civil Application No. 3266 of 2020 which are as follows:-
2.1. The petitioner is aggrieved by the judgment and award passed in Reference (LCA) No. 271 of 2016 passed by the Labour Page 1 of 7 Downloaded on : Sun Jun 14 09:02:11 IST 2020 C/SCA/3266/2020 ORDER Court, Ahmedabad on 31.03.2017, whereby, it rejected the request of reinstatement with full backwages and all consequential benefits.
2.2. The petitioner served in the respondent company who manufactured the industrial chemicals as a Press Operator and he continued his services till 01.10.1997. It was his grievance that he was retrenched without giving retrenchment compensation and other termination dues by serving the retrenchment notice.
2.3. According to him, a cheque of the amount of retrenchment compensation and that of the leave had never been handed over to the petitioner. For his dues, for many years he had follow up with the company, however, he received nothing. He also was in a hope to be reinstated in case the work starts in the factory.
However, it took more than 18 years of time.
2.4. It is further the say of the petitioner that he is oblivious to the cob-web of law and therefore, he approached several union but, nothing materialized has come and finally the industrial dispute came to be raised before the Conciliation Officer, which resulted into the Reference (LCA) No. 271 of 2016 owing to failure of the conciliatory procedure.
Page 2 of 7 Downloaded on : Sun Jun 14 09:02:11 IST 2020 C/SCA/3266/2020 ORDER 2.5. The petitioner filed statement of claim where he has emphasized on non-grant of retrenchment compensation and the same having been done in violation of provisions of law. He has not been cross-examined by the respondent, however, his reference being Reference (LCA) No. 271 of 2016 came to be rejected by the Court.
2.6. It is his say that the award passed violates the basic principles of law and the same is perverse and therefore, the challenge is made in this petition under Articles 226 and 227 of the Constitution of India.
3. The prayers sought for in this petition are as follows:-
"(A) To admit the present petition;
(B) To issue writ of certiorari or any other appropriate writ or order or direction in the nature of certiorari quashing and setting aside the award in Reference (LCA) no. 271 of 2016 passed by learned Labour Court at Ahmedabad on 31-03-2017 and allow the prayers made in Reference (LCA) no. 271 of 2016 directing the respondent to reinstate the petitioner with full back wages and all consequential benefits by imposing exemplary cost upon the respondent employer;
(C) To grant such other and further reliefs, as may be deemed to be just and proper."
4. This Court has heard learned advocate Mr. K.R.Mishra appearing for the petitioner. According to him, the Court on Page 3 of 7 Downloaded on : Sun Jun 14 09:02:11 IST 2020 C/SCA/3266/2020 ORDER completely wrong premise of a limitation of three years, in wake of the amendment in Section 10 of the Act has rejected his reference. He has also further urged that this amendment has not been in operation and yet the Court relying on the amendment to Section 2(A) of the Principal Act held that the dispute raised after 18 years is not sustainable in the law. It has not regarded the fact that no challenge has been made to the oral version stated by the petitioner on the part of the respondent company.
4.1. It is further his request that the Labour Court was not justified in any respect to reject the request of reinstatement and all other reliefs.
5. This Court notices from the submissions as well as from the material made available to this petition that the dispute has been raised after 18 years by the present petitioner. It is neither in challenge nor questioned that the petitioner herein was working with the company for nearly 15 to 17 years. The services came to be terminated from 01.10.1997. The notice had been made on 01.07.1997 and the termination came on 01.10.1997. The plea on the part of the petitioner at the time of raising dispute, which culminated into the reference was that he has already worked for more than 240 days in the previous year. Page 4 of 7 Downloaded on : Sun Jun 14 09:02:11 IST 2020 C/SCA/3266/2020 ORDER There has been a breach of mandatory provisions of Section 25(F) of the Industrial Disputes Act. They were ignorant of law and they also waited for the factory to be started once again. They were ensured that the factory would start in the future and thus, it is a fraud upon them and hence, they had sought reinstatement.
6. This Court notices that in the examination in chief which has been given on affidavit, the petitioner has admitted of having received notice on 01.07.1997 and the petitioner and others were to be terminated from 01.10.1997. According to the petitioner, no benefits had been given at the time when he was terminated and he has already completed 240 days. The Assistant Labour Commissioner made efforts for reconciliation and thereafter had made a reference to the Labour Court.
7. As can be seen from the judgment that the Court has referred to the Industrial Dispute (Amendment) Act, 2010 as also regarded Section 2(A) of the Principal Act which itself specifies that any application directed to the Labour Court or Tribunal for adjudication of the dispute referred to therein after the expiry of 45 days from the date he has made application to the Conciliation Officer, the same can be adjudicated upon by the Court, as if it were a dispute referred to it by the appropriate Page 5 of 7 Downloaded on : Sun Jun 14 09:02:11 IST 2020 C/SCA/3266/2020 ORDER Government in accordance with the provisions of this Act and all the provisions of this Act shall apply in relation to such adjudication. However, an application shall be made to the Labour Court before expiry of three years from the date of discharge, dismissal, retrenchment or otherwise termination of service as specified in sub-section (1).
8. This has been a base for the Court to deny the reference. It is also noted that the Court had also considered that there is no merit in the reference which has been raised and therefore, even if the cross examination of the present petitioner by the company does not reveal that any breach of Section 25(F) of the Act has occurred, noticing the fact that there is no whisper with regard to the explanation of delay of 18 years coupled with the fact that there is already a material indicating the payment of retrenchment compensation and also other benefits since the notice had already been given in the month of July, 1997 for them, to be terminated from 01.10.1997. The Court finds that there is noting to indicate that the Court below acted beyond the jurisdiction and has not acted as was required of it. For having acted within the bounds and having taken a stand looking at this papers minus the aspect of the amendment, this Court notices that the decisions of the Apex Court which have been Page 6 of 7 Downloaded on : Sun Jun 14 09:02:11 IST 2020 C/SCA/3266/2020 ORDER also followed by this Court where there will have to be an explanation of the delay by the party who has approached this Court belatedly, the Court finds no reason for entertaining this petition.
9. All Special Civil Applications stand dismissed in limine.
(SONIA GOKANI, J) Bhoomi Page 7 of 7 Downloaded on : Sun Jun 14 09:02:11 IST 2020