Gujarat High Court
Tata Chemicals Limited vs Tata Chemicals Mazdoor Sangh & on 7 September, 2015
Author: Vipul M. Pancholi
Bench: Vipul M. Pancholi
C/SCA/10497/2015 JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 10497 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
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1 Whether Reporters of Local Papers may be
allowed to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the
fair copy of the judgment ?
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any order
made thereunder ?
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TATA CHEMICALS LIMITED....Petitioner(s)
Versus
TATA CHEMICALS MAZDOOR SANGH & 1....Respondent(s)
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Appearance:
MR.VARUN K.PATEL, ADVOCATE for the Petitioner(s) No. 1
MR TR MISHRA, ADVOCATE for the Respondent(s) No. 1
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CORAM: HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 07/09/2015
ORAL JUDGMENT
1. Rule. Learned advocate Mr. T.R.Mishra waives service of notice of Rule for respondent No.1 - Union.
2. With the consent of the learned advocates for Page 1 of 31 HC-NIC Page 1 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT the parties, the petition is taken up for final hearing looking to the controversy involved in this petition.
3. This petition is filed under Articles 226 and 227 of the Constitution of India, wherein, the petitioner has prayed that the order dated 22nd April 2015 passed by the Industrial Tribunal, Jamnagar below application for interim relief Exh.8 filed by the respondent No.1 - Union in Reference (IT) No.54 of 2013 be quashed and set aside.
4. Learned advocate Mr. Varun K. Patel appearing for the petitioner submitted that the concerned workman was appointed as Khalasi in Civil Engineering Works Department of the petitioner on 22.02.1978. The said workman in his application form dated 22.02.1978 has categorically stated his date of birth as 01.06.1953. Along with the said application he had produced the School Leaving Certificate showing his date of birth as 01.06.1953 at the time of his appointment. The said workman was also examined by the Industrial Physician at the time of his joining with the petitioner. The medical report dated 20.02.1978 also confirms the age of 25 years of the concerned workman at the time of examination. It is contended that on 11.11.2012 petitioner informed the concerned workman about his superannuation on reaching the age of 60 years on Page 2 of 31 HC-NIC Page 2 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT 1st June 2013. Petitioner also rejected the application dated 16.11.2012 given by the said workman for correction of his birth date from 01.06.1953 to 20.02.1957.
5. Learned advocate Mr.Patel thereafter contended that a reference was made at the instance of the concerned workman to the Industrial Tribunal, Jamnagar for an industrial dispute relating to correction in the date of birth of the said workman from 01.06.1953 to 20.02.1957. The said reference is registered as Reference (IT) No. 54 of 2013. In the said reference the workman filed statement of claim before the concerned Tribunal. Along with the same he also filed an application for interim relief at Exh.8. The petitioner filed reply to the said application for interim relief. Learned advocate submitted that initially the order of status-quo was granted by the Tribunal. Thereafter, it was extended from time to time and ultimately by the impugned order dated 22.04.2015 the Tribunal allowed the application for interim relief, whereby the petitioner was directed to maintain status-quo till 20th February 2017 and petitioner was also directed to pay 50% of the wages every month to the concerned workman. The Tribunal also observed that both the parties should cooperate for disposal of the case within a period of six months. It is this order which is under challenge before this Court.
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6. Learned advocate Mr. Patel for the petitioner would contend that the Tribunal has no power to grant interim relief and therefore the impugned order be quashed and set aside. He would further submit that the Tribunal ought to have dismissed the said application on the ground that the workman has filed a reference at the fag end of his retirement. The reference is filed in the year 2013 i.e. at the fag end of his retirement. The workman has also filed an application for interim relief and since 2013 the Tribunal granted status-quo which was extended from time to time, as a result of the said order, the workman is working with the petitioner though he has attained the age of superannuation as per the School Leaving Certificate produced by him at the time of joining the services. Learned advocate further contended that because of the interim relief granted by the learned Tribunal, the reference of the workman is practically allowed. The Tribunal has no power or authority to grant interim relief by which the reference is allowed. Thus, it is contended that the Tribunal has exceeded its jurisdiction and committed serious error of law.
7. Learned advocate Mr. Patel thereafter submitted that if ultimately the concerned workman loses in reference even then he would get service benefit pursuant to the impugned order, whereas the petitioner would not be compensated Page 4 of 31 HC-NIC Page 4 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT for the consequential loss. He, therefore, submitted that balance of convenience would be in favour of the petitioner and therefore the Tribunal ought not to have granted interim relief in favour of the workman. He further submitted that the dispute involved in the present case is with regard to correction of birth date of concerned workman. The said dispute requires adjudication of highly disputed question of facts as well as law which cannot be decided at the interim stage in absence of complete evidence led by both the parties.
8. Learned advocate Mr. Patel thereafter contended that even assuming without admitting that as per the case of the workman he has given an application in the year 1983 for correction of the birth date and the petitioner has not given any reply to the same, the workman ought to have raised the dispute in the year 1983. Similarly, if the workman has given applications in the year 2007 and 2012 for correction of his birth date and if the said applications were not considered and not decided, the workman ought to have raised the dispute at the relevant time. However, when the petitioner has given a notice on 11.11.2012 informing the workman about his date of superannuation i.e. 01.06.2013, at that time, dispute was raised. Thus, such type of dispute which is raised at the fag end of his retirement is not required to be entertained and at least Page 5 of 31 HC-NIC Page 5 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT the application for interim relief filed by the workman ought to have been rejected by the Tribunal.
9. Learned advocate Mr. Patel has placed reliance upon the decision of this Court in the case of Gujarat Mazdoor Sabha v. Indian Oil Corporation, reported in 2005(3) G.L.H. 85. Para 6 of the said judgment reads as under:
"6. Heard the learned advocates appearing on behalf of the parties. It is to be noted that the main relief, which is sought in the present Special Civil Application is for a direction on the respondent No. 3 Conciliation Officer to complete the conciliation proceedings within the stipulated time and to submit his report to the respondent No. 4 appropriate authority and directing the appropriate authority to take a decision of making a Reference to the Industrial Tribunal. Another prayer is for a declaration that the decision to terminate the concerned workmen pending in conciliation proceedings is illegal and in violation of the provisions of the I.D. Act. It is also required to be noted that the demand raised by the petitioner union is with regard to regularisation, permanency and absorption and to treat the contract labour system and the contract between the respondent No. 1 IOCL and the contractor as sham and bogus, and for a declaration that the concerned workmen are the employees of the respondent No. 1 IOCL and for which the union has already approached the Conciliation Officer. It is the case of the learned Additional Central Government Standing Counsel that the Page 6 of 31 HC-NIC Page 6 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT conciliation proceedings are not concluded as there is total non-cooperation on the part of the union as well as the respondent No. 1. Assuming that the Reference is made to the Industrial Tribunal, in that case the main relief would be whether the contract labour system and the contract between the respondent No. 1 IOCL and the contractor is sham and bogus or not and that whether the concerned workmen are the employees of the respondent No. 1 IOCL or not and that will be the final relief which may be granted by the Industrial Tribunal on adjudication. Till final adjudication if any relief is granted by the Industrial Tribunal it cannot be said at this stage that the concerned workmen are the employees of the respondent No. 1 IOCL and that the Contract Labour System and the contract between the respondent No. 1 IOCL and its contractor is sham and bogus. To grant any relief directing the respondent No. 1 and/or the contractor and/or the new contractor would be granting final relief at this stage and that too without any final adjudication by the appropriate Industrial Tribunal. Even in a proceeding under Sections 33 and 33A of the I.D. Act, the Hon'ble Supreme Court in the case of Delhi Cloth & General Mills [supra] has held that the interim relief should not be the whole relief what the workmen could get if they succeed finally and hence pending an application under Section 33A of the Act, the employer could not be directed to give work or to pay the wages by way of interim relief. In another decision in the case of M/s. Anup Engineering Ltd [supra], where the dismissal was without holding domestic enquiry and industrial dispute which was raised was referred to the Labour Court, the Supreme Court has set aside the Page 7 of 31 HC-NIC Page 7 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT interim order passed by the Labour Court by which the workman was to be paid the wages, by observing that the interim relief cannot be granted by deciding main issue at interlocutory stage. Now, considering the facts of the present case, it is required to be noted that the proceedings are pending at conciliation stage and even there is no Reference made till date. Therefore, when in a Reference no interim relief can be granted, and if granted it would be allowing and/or granting the main relief, there is no question of granting any relief during pendency of the conciliation proceedings. As stated hereinabove, till date there is no relationship of employer and employee established between the concerned workmen and the respondent No. 1 and there is no adjudication on the question whether the concerned workmen are the employees of respondent No. 1 or not and/or whether the contract is sham or bogus. Under the circumstances, considering the aforesaid two decisions of the Hon'ble Supreme Court and even catena of decisions of the Hon'ble Supreme Court as well as of this Court the proposition is very well established that a Court should not grant any interim relief which can be the main relief after adjudication. Under the circumstances, the prayer of the petitioner (of course orally when in absence of any relief sought for by the petitioner specifically in the present Special Civil Application for directing the respondent No. 1 and/or the contractor to not to discontinue them during the pendency of the conciliation proceedings) cannot be granted. So far as the orders, which are relied upon by the learned advocate appearing on behalf of the petitioner are concerned, apart from the fact that they are not laying down any law Page 8 of 31 HC-NIC Page 8 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT and/or not discussing about any law as most of the order are on consensus between the parties, the same cannot be relied upon. On going through the orders which are relied upon by the learned advocate on behalf of the petitioner, it is evident that there is no discussion in the aforesaid orders about the law laid down by the Hon'ble Supreme Court in the aforesaid two decisions and other decisions with regard to grant of interim relief during pendency of the proceedings which will tantamount to grant of main relief, and the same has not been considered at all and therefore all the aforesaid orders are per incurium."
10. Learned advocate Mr. Patel for the petitioner, thereafter, has placed reliance upon the decision of the Delhi High Court in the case of Batra Hospital Employees Union v. Management of Batra Hospital And Medical Research Centre and Others, reported in 2012-I-LLJ-69 (Del). Para 14 of the said judgment reads as under:
"14.The question, whether the workmen are entitled to be regularized by respondent No.1 is inextricably linked with the question, whether they are the employees of the hospital or were employed by the contractor. The two issues cannot be delinked. The Industrial Tribunal in order to determine, whether the workmen are entitled to regularization of their services with the Management, will have to first give a finding, whether they were the employees of the Management or of the contractor. If on the basis of the evidence led before the Tribunal, it comes to the conclusion that they were the employees of the contractor, then Page 9 of 31 HC-NIC Page 9 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT obviously they would not be entitled to regularization with the Management. If, on the other hand, it comes to the conclusion that their employment with the contractor was only a camouflage and that they were, in effect, and, for all intents and purposes, the employees of the Management, then not only will they be entitled to regularization but as a consequence of such finding, their termination, if it is linked with the cessation of contract with the contractor, will also go. But in either case, the Tribunal will be, in no position, to adjudicate upon the disputes without recording evidence and without appreciating the material on record on merits. In this view of the matter, I feel, had the Tribunal passed an interim order in favour of the workmen granting them interim protection against termination, CM. Nos.1106/2011 & 1281/2011 in WP (C) No.516/2011 Page 11 it would have tantamounted to granting them the main relief itself. Hence, I hold that its refusal to grant any such relief cannot be faulted."
11. Learned advocate for the petitioner, thereafter, relied upon the decision of the Bombay High Court in the case of India United Mills No.2 v. Ram Murat Haridwar Kurmi, reported in (1997)-II-LLJ-1131 (Bom), wherein in para 1 and 5, Bombay High Court observed and held as under:
"1. The petitioners have challenged the order dated December 12, 1995 passed by the Industrial Court, Bombay allowing the interim relief application and restraining the petitioners from retiring the Page 10 of 31 HC-NIC Page 10 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT Respondent No. 1 on his attaining the age of 60 years in this petition under Article 226 of the Constitution. Normally, this Court will not interfere with an interim order passed by a quasi judicial authority. In the instant case, we are not satisfied with the manner in which the Industrial Court has exercised the jurisdiction. Cases have come to our notice where the Industrial Court, on identical facts, refused to grant interim relief and that order was upheld by this Court.
5. We do not want to express on the opinion formed by the Industrial Court at this stage, suffice it to say that the Industrial Court was wholly unjustified in ordering retention of the 1st respondent in service till he attained the age of 63 years. The Industrial Court did not appreciate that if ultimately the 1st respondent succeeds, he could be adequately compensated with the grant of wages for three years. Allowing the interim relief application at this stage tantamounts to granting the 1st respondent relief to which ultimately he may not be found entitled to. The Industrial Court has wrongly exercised the discretion and to say the least in a most unjustified manner."
12. Similarly, he has also placed reliance upon the decision rendered by the Bombay High Court in the case of Aurangabad District Central v. Damodar S/o. Raoji Jadhav, reported in (2006)-III-LLJ- 1044 (Bom), wherein, in para 4, the Bombay High Court has observed that:
Page 11 of 31HC-NIC Page 11 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT "4. It is a settled position in law that persons holding offices in public employment cannot be permitted to seek change in the date of birth at the fag end of the service career. The date of birth which is recorded with the bank is based on H.S.C. Certificate issued by the Board way back in the year 1967 and the said date of birth is sought to be countered on the basis of a birth certificate issued on the basis of an affidavit filed by the respondent, in view of the fact that the original register was not available. If the two conflicting documents pitted against each other are weighed, it can be prima facie said that the H.S.C. certificate would carry more probative value as compared to the birth certificate issued, solely on the basis of an affidavit filed by the respondent. In this view of the matter, the respondent had not made out a prima facie case for his continuance in the service after having reached the age of superannuation, but, the Industrial Court, by passing the impugned order, has directed the petitioner to continue the respondent in service. In my opinion, the impugned order suffers from patent illegality and cannot be permitted to hold the field. In the facts of the present case, even if the respondent is made to retire on the last day of August, 2006, and if the respondent ultimately succeeds in the complaint, he can very well be compensated by payment of salary for the period for which the respondent is deprived of service. There is no question of any irreparable loss being caused to the respondent. The learned Counsel for the respondent apprehends that under the pretext that the complaint is pending with the Industrial Court, the petitioner may not release the terminal/retiral benefits which are due Page 12 of 31 HC-NIC Page 12 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT and receivable by the respondent. The learned Counsel for the petitioner fairly states that treating the respondent as having retired from service from 31st August, 2006, the petitioner shall release all the terminal/retiral benefits to the respondent expeditiously."
13. Learned advocate for the petitioner, thereafter has placed reliance upon the decision of the Hon'ble Supreme Court rendered in the case of The Management Hotel Imperial, New Delhi and others, v. Hotel Workers' Union, reported in AIR 1959 SC 1342, in which the Hon'ble Supreme Court, has observed and held in para 23 as under:
"23. It is however urged on behalf of the appellants that even if the tribunal has power under s. 10(4) of the Act to grant interim relief of the nature granted in these cases it can only do so by submitting an award under s. 15 to the appropriate government. Reference in this connection is made to sections 15, 17 and 17-A of the Act. It is submitted that as soon as the tribunal makes a determination whether interim or final, it must submit that determination to government which has to publish it as an award under s. 17 and thereafter 491 the provisions of s. 17-A will apply. In reply the res- pondents rely on a decision of the Labour Appellate Tribunal in Allen Berry and Co. Ltd. v. Their Work. men(1), where it was held that an interim award had not to be sent like a final award to the government for publication and that it would take effect from the date of the order. We do not think it necessary to decide for present purposes whether an order granting interim Page 13 of 31 HC-NIC Page 13 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT relief of this kind is an award within the meaning of s. 2(b) and must therefore be published under s. 17. We shall assume that the interim order passed by the Tribunal on December 5, 1955, could not be enforced as it was in the nature of an award and should have been submitted to the government and published under s. 17 to become enforceable under s. 17-A. It is, however, still open to us to consider whether we should pass an order giving interim relief in view of this alleged technical defect in the order of the Industrial Tribunal. We have the power to grant interim relief in the same manner as the Industrial Tribunal could do and our order need not be sent to government for publication, for ss. 159 17 and 17-A do not apply to the order of this Court just as they did not apply to the decision of the Appellate Tribunal which was governed by the Industrial Disputes (Appellate Tribunal) Act, 1950 (No. XLVIII of 1950), (since repealed). We have already mentioned that this Court passed an order on June 5, 1956, laying down conditions on which it stayed the operation of the order of December 5, 1955, made by the Industrial Tribunal. We are of opinion that order is the right order to pass in the matter of granting interim relief to the workmen in these cases. Ordinarily, interim relief should not be the whole relief that the workmen would get if they succeeded finally. In fairness to the Industrial Tribunal and the Appellate Tribunal we must say that they granted the entire wages plus Rs. 25 per mensem per head in lieu of food on the view that no suspension was possible at all in those cases and therefore the contract of service continued and full wages must be paid. Their orders might have been different if they had held otherwise. It Page 14 of 31 HC-NIC Page 14 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT seems to us just and fair in the circumstances therefore to order that the appellants shall pay to their respective workmen concerned half the amount adjudged payable by the order dated December 5, 1955, with respect to the entire period, as the case may be, from October 1, 1955 to December 10, 1955 or July 15, 1956, by which date, as we have already pointed out, practically all the workmen were taken back in service. We, therefore, order accordingly."
14. Learned advocate for the petitioner lastly relied upon the decision rendered by the Hon'ble Supreme Court in the case of Secretary and Commissioner, Home Department and Others v. R. Kirubakaran, reported in 1994 Supp (1) SCC 155, wherein, in para 7, it has been observed that:
"7. An application for correction of the date of birth should not be dealt with by the tribunal or the High Court keeping in view only the public servant concerned. It need not be pointed out that any such direction for correction of the date of birth of the public servant concerned has a chain reaction, inasmuch as others waiting for years, below him for their respective promotions are affected in this process. Some are likely to suffer irreparable injury, inasmuch as, because of the correction of the date of birth, the officer concerned, continues in office, in some cases for years, within which time many officers who are below him in seniority waiting for their promotion, may lose their promotions for ever. Cases are not unknown when a person accepts appointment keeping in view the date of Page 15 of 31 HC-NIC Page 15 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT retirement of his immediate senior. According to us, this is an important aspect, which cannot be lost sight of by the court or the tribunal while examining the grievance of a public servant in respect of correction of his date of birth. As such, unless a clear case, on the basis of materials which can be held to be conclusive in nature, is made out by the respondent, the court or the tribunal should not issue a direction, on the basis of materials which make such claim only plausible. Before any such direction is 3 1993 Supp (1) SCC 763 : 1993 SCC (L&S) 276: (1993) 23 ATC 807 4 (1993) 2 SCC 162:
1993 SCC (L&S) 375 :(1993) 24 ATC 92 159 issued, the court or the tribunal must be fully satisfied that there has been real injustice to the person concerned and his claim for correction of date of birth has been made in accordance with the procedure prescribed, and within the time fixed by any rule or order. If no rule or order has been framed or made, prescribing the period within which such application has to be filed, then such application must be filed within the time, which can be held to be reasonable. The applicant has to produce the evidence in support of such claim, which may amount to irrefutable proof relating to his date of birth. Whenever any such question arises, the onus is on the applicant, to prove the wrong recording of his date of birth, in his service book. In many cases it is a part of the strategy on the part of such public servants to approach the court or the tribunal on the eve of their retirement, questioning the correctness of the entries in respect of their dates of birth in the service books. By this process, it has come to the notice of this Court that in many cases, even if ultimately their applications are Page 16 of 31 HC-NIC Page 16 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT dismissed, by virtue of interim orders, they continue for months, after the date of superannuation. The court or the tribunal must, therefore, be slow in granting an interim relief for continuation in service, unless prima facie evidence of unimpeachable character is produced because if the public servant succeeds, he can always be compensated, but if he fails, he would have enjoyed undeserved benefit of extended service and merely caused injustice to his immediate junior.
15. On the other hand, learned advocate Mr. T.R.Mishra appearing for the respondent No.1 has taken the preliminary objection about the maintainability of the present petition. Learned advocate has submitted that this petition is not maintainable as the same is filed against the interim order passed by the Tribunal and therefore this Court may dismiss this petition only on this ground. In support of the said contention, learned advocate Mr. Mishra for the respondent workman has relied upon the decision rendered by this Court in the case of Asrafkhan Alikhan Pathan v. Divisional Controller, reported in 2009 I CLR 758. In the said decision, this Court in para 4 has held as under:
"4. This Court is of the view that the interim order challenged under Article 227 of the Constitution of India does not suffer from any infirmity whatsoever calling for any interference at this Page 17 of 31 HC-NIC Page 17 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT stage. It is very important to note that the Court while rejecting those applications has specifically mentioned in para-6 of the order that the petitioner has not challenged the procedure and process of inquiry at all. The Court has further observed in this very paragraph that the petitioner I.e. Second party has admitted the documents of the inquiry. The Court has further recorded finding in this paragraph that looking to the papers during inquiry, the delinquent i.e present petitioner did not demand any log-sheet or driver's duty list or control chart or worksheet register and therefore, on this ground the Labour Court has rightly come to the conclusion that no case is made out to allow the applications for production of these documents and therefore, the applications have rightly been rejected. This Court is of the view that in view of this clear findings recorded by the Labour Court, the petition cannot be entertained. Moreover, it is interlocutory order only. Suffice it to say that if there is final order against the petitioner, the petitioner will be at liberty to raise all the disputes permissible under law."
16. Learned advocate Mr. Mishra, thereafter, has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Dena Bank v. D.V.Kundadia, reported in 2011 III CLR 415. The Hon'ble Supreme Court observed in the decision that no writ petition should be entertained against an interim order of the Labour Court or the Industrial Tribunal. It is only when a final award is given, then a party should be allowed to Page 18 of 31 HC-NIC Page 18 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT challenge it if he is aggrieved.
17. Learned advocate for the respondent thereafter has placed reliance upon the order dated 28.09.2012 passed by this Court in Special Civil Application No.9698 of 2012 with Special Civil Application No.9699 of 2012, wherein this Court has observed in para 27 as under:
"27. Viewed from all angles, the petition does not merit acceptance. The Court is not inclined to entertain the petition against an interlocutory order, especially as it does not find that the Tribunal has exceeded its jurisdiction or acted in excess of jurisdiction vested in it, while passing the impugned order. It is open to the petitioner to raise all contentions that have been raised in the petition at the time of final hearing of the Reference."
18. At this stage, with regard to the preliminary objection taken by the learned advocate Mr. Mishra for the workman about the maintainability of this petition against an interim order passed by the Tribunal, learned advocate Mr. Varun K. Patel appearing for the petitioner has contended that if the interim order passed by the Tribunal by which the main relief is granted to the workman, the same can be challenged before this Court by filing a writ petition. He has once again relied upon the aforesaid decisions.
However, so far as maintainability of this
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petition is concerned, learned advocate has
placed reliance upon the judgment dated
19.12.2012 passed by the Hon'ble Division Bench of this Court in Special Civil Application No.11987 of 2012. The Hon'ble Division Bench has considered the decision rendered by the Hon'ble Supreme Court in the case of Dena Bank (supra) and also considered various other decisions.
19. Learned advocate Mr. Mishra, thereafter, contended that even assuming without admitting that present petition which is filed against an interim order passed by the Tribunal is maintainable even then from the facts and circumstances of the present case it cannot be said that Tribunal has exceeded its jurisdiction while granting the relief in favour of the workman. He submitted that the workman had given the applications in the year 1983, 2007 and also in the year 2012, for correction of his date of birth. However, the said applications were not considered and no response was given by the petitioner and therefore the workman has presumed that his date of birth is corrected as 20.02.1957. Learned advocate Mr. Mishra has referred to various documents which are annexed with the affidavit-in-reply filed by the respondent workman and submitted that from the said documents it is clear that the date of birth Page 20 of 31 HC-NIC Page 20 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT of the workman is 20.02.1957 and not 01.06.1953 as reflected in the School Leaving Certificate.
20. Learned advocate Mr. Mishra thereafter contended that the Tribunal has not allowed the entire application for interim relief and the petitioner is directed to pay 50% of the wages every month to the workman till 20.02.2017 and necessary direction is also given to both the parties to proceed with the matter and it is also observed that the reference should be concluded within a period of six months. Though such direction is given by the Tribunal, petitioner has not co-operated with the hearing of the main reference and till date the petitioner employer has not filed any reply/written statement to the main reference. Learned advocate Mr. Mishra has placed on record the certified copies of the applications given by representative of the workman for taking the matter on board and certified copies of other applications are also produced on record. From the said documents, learned advocate Mr. Mishra has contended that petitioner is not co-operating with the proceedings before the Tribunal and filed the present petition and therefore no error is committed by the Tribunal and therefore the present petition be dismissed. He further contended that the Tribunal is empowered to grant Page 21 of 31 HC-NIC Page 21 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT interim relief. He has referred to the definition of award given in Section 2(b) of the Industrial Dispute Act and submitted that "award" means an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court, Industrial Tribunal or National Industrial Tribunal and includes an arbitration award made under section 10A.
21. I have considered the arguments canvassed on behalf of learned advocates for the parties. I have also gone through the material produced on record and the decisions relied upon by the learned advocates for the parties.
22. Following important facts have emerge on record:
(i) The workman joined the services of the petitioner in the year 1978. Along with his application he produced School Leaving Certificate, wherein the date of birth of the workman is shown as 01.06.1953.
(ii) It is the case of the workman that he had given the applications for correction of birth date in the year 1983, 2007 and 2012. The said applications were received by the employer - petitioner. However, no Page 22 of 31 HC-NIC Page 22 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT action has been taken and therefore the workman has presumed that the employer - petitioner has changed the birth date of the workman. On 11.11.2012, the petitioner informed the workman about his date of superannuation i.e. 01.06.2013. Thereafter, the workman gave an application on 16.11.2012 for correction of his birth date. The said application was rejected by the petitioner and therefore the dispute was raised and reference came to be made before the concerned Tribunal.
(iii)An application at Exh.8 was given by the workman in the year 2013 in the said reference. The Tribunal initially granted order of status-quo, which was extended from time to time and ultimately the impugned order came to be passed in April 2015 by which the petitioner is directed to maintain the status-quo with regard to the service condition of the respondent up to 20.02.2017 and till then petitioner is directed to pay 50% of the wages.
23. In view of the aforesaid broad facts of the present case, the submissions canvassed on behalf Page 23 of 31 HC-NIC Page 23 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT of the learned advocates for the parties are required to be considered. First of all, the preliminary objection taken by the respondent as to whether this petition, which is filed against an interim order, is maintainable or not, is required to be decided by this Court. This Court in the order dated 28.09.2012 passed in Special Civil Application No.9698 of 2012 and allied matter, observed that the Court is not inclined to entertain the petition against an interlocutory order, especially as it does not find that the Tribunal has exceeded its jurisdiction or acted in excess of jurisdiction vested in it and therefore refused to entertain the petition against the interlocutory order passed by the Tribunal. Here, in this case, it clearly appears that the Tribunal has exceeded its jurisdiction while issuing the directions to the petitioner. Therefore, the reliance placed on the said decision by the learned advocate Mr. Mishra is misconceived.
24. Learned advocate Mr. Mishra for the respondent in support of the said contention has placed reliance upon the decision Asrafkhan Alikhan Pathan (supra). However, in the said case, the Court observed that, "this Court is of the view that the interim order challenged under Article 227 of the Constitution of India does not Page 24 of 31 HC-NIC Page 24 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT suffer from any infirmity whatsoever calling for any interference at this stage." Thus, in the facts of the said case, the Court was of the opinion that the order passed by the Labour Court does not suffer from any infirmity and therefore this Court refused to interfere at the interim stage.
25. Thereafter, learned advocate Mr. Mishra has placed reliance upon the decision rendered by the Hon'ble Supreme Court in the case of Dena Bank (supra). In fact, the Hon'ble Supreme Court, in the said decision, has not passed any detailed judgment. However, the aforesaid decision is considered by the Hon'ble Division Bench of this Court in its judgment dated 19.12.2012 passed in Special Civil Application No.11987 of 2012, wherein it has been observed as under:
"7. Before we proceed to examine the matter on merits, we would like to deal with the preliminary objection raised by Mr. Clerk, the learned counsel appearing for the employees, as regards the maintainability of the present petition. Mr. Clerk has heavily relied upon the decision of the Supreme Court in the case of Dena Bank (supra), to fortify his submission that this petition is not maintainable as the same is against an interim order of the Industrial Tribunal.
9. Having gone through the entire judgment of the Supreme Court, we have noticed that it is not clear as to what Page 25 of 31 HC-NIC Page 25 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT were the facts of that case and what was the nature of the interim order passed by the Tribunal, which was the subject matter of challenge. It is true that the remedy under Article 226 or 227 of the Constitution cannot be permitted to be availed of for the purposes of frustrating the welfare legislation or allow to be an appeal in disguise. The remedy under Article 226 or 227 of the Constitution is not intended to circumvent the statutory procedure, if available in law. In a case where the petitioner is shown to have remedy of challenging the final order by way of appeal, ordinarily the High Court would not exercise its jurisdiction under Article 226 of the Constitution, as, if the High Court decides to interfere with the interim orders passed by the Labour Court or the Industrial Tribunal, the same is likely to frustrate the provisions of the Act, which are intended to achieve a social object as is evident from the statement of object and reasons. Under the Industrial Disputes Act, 1947, there is no provision of appeal against an interim award or final award, which may be passed by the Tribunal. The only remedy available with the aggrieved party would be to approach the High Court invoking the supervisory jurisdiction under Article 227 of the Constitution of India. At the same time, it is also true that there is no absolute bar on the exercise of writ jurisdiction by the High Court in any case, but before exercising such jurisdiction, self-imposed restraints are required to be taken note of. The Court may decide to exercise its jurisdiction where it is found that the order impugned was without jurisdiction or apparently contrary to settled position of law or was likely to result in miscarriage of justice or tantamount to abuse of process of Court Page 26 of 31 HC-NIC Page 26 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT or had been obtained by suppression of material facts or any circumstance, which shocks the conscience of the Court.
10. In our view, the decision of the Supreme Court relied upon cannot be construed as laying down an absolute proposition of law that in all circumstances, a writ Court cannot interfere with the interim orders made by the Industrial Tribunal. In a given case, where the Court may find that the order impugned is without jurisdiction or apparently contrary to certain position of law or is likely to result in miscarriage of justice, then in such circumstances, the High Court can entertain a petition filed under Article 227 of the Constitution of India against an interim order made by the Industrial Tribunal. Therefore, the learned counsel for the respondent may not be correct in saying that the petition is not maintainable as the same is directed against an interim order of revision of wages passed by the Industrial Tribunal."
26. Thus, in view of the aforesaid decision rendered by the Hon'ble Division Bench of this Court, it is clear that under the Industrial Disputes Act, 1947, there is no provision of appeal against an interim award or final award which may be passed by the Tribunal. The only remedy available with the aggrieved party would be to approach the High Court invoking the supervisory jurisdiction under Article 227 of the Constitution of India. It is also true that there is no absolute bar on the exercise of writ Page 27 of 31 HC-NIC Page 27 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT jurisdiction by the high Court in any case, but before exercising such jurisdiction, self-imposed restraints are required to be taken note of. In a given case, where the Court finds that the order impugned is without jurisdiction or apparently contrary to certain provisions of law or is likely to result in miscarriage of justice or tantamount to abuse of process of Court or had been obtained by suppression of material facts, the High Court can entertain a writ petition under Article 227 of the Constitution of India against an interim award passed by the Tribunal.
27. In view of the aforesaid discussion, I am of the opinion that the present petition is maintainable though it is filed against the interim order passed by the Tribunal and more particularly when the Tribunal, by way of interim relief, has practically granted the relief prayed for in the reference. Thus, at the interim stage that reference is practically allowed. Thus, the Tribunal has exceeded its jurisdiction vested in it.
28. From the record, it is also clear that the workman has raised the dispute at the fag end of his retirement. If it is the case of the workman that he had given his application in the year 1983 for change of date of birth and same was not Page 28 of 31 HC-NIC Page 28 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT considered then he ought to have raised the dispute at the relevant time. It is also the case of the workman that in the year 2007 also he has given an application for the same purpose and the same was not considered or decided. However, in the year 2007 also workman has not raised any dispute and prayed for the change of his birth date and at the fag end of his retirement when the notice was given by the employer in November 2012, he requested for change of his birth date. Thus, from the facts of the present case, I am of the opinion that the Tribunal has granted interim relief in the nature of preventive injunction in favour of the concerned workman, which is impermissible in the eye of law. By way of such direction, the Tribunal has exceeded its jurisdiction. This Court is also of the opinion that if ultimately the concerned workman loses in reference then also he would get the service benefit pursuant to the impugned order, whereas the petitioner cannot be compensated for the consequential loss. It is relevant to note at this stage that as per the School Leaving Certificate given at the time of joining the service, the date of superannuation of the workman is 01.06.2013 and for the period of approximately two years the workman has worked under the interim order passed by the Tribunal and he got 100% salary. However, after the Page 29 of 31 HC-NIC Page 29 of 31 Created On Sun Feb 28 06:33:49 IST 2016 C/SCA/10497/2015 JUDGMENT impugned order passed in April 2015, the petitioner is required to pay 50% salary to him till 2017. Thus, the workman has got the benefit by way of interim order and if ultimately reference is allowed in favour of the workman, he will get all the benefits, whereas, if the workman loses then it is difficult for the petitioner to recover the amount from the workman and therefore also the balance of convenience tilts in favour of the present petitioner. Thus, the Tribunal ought not to have allowed the said application for interim relief in favour of the workman. In view of the same, this petition is allowed. The impugned award passed by the Tribunal is quashed and set aside. Parties are directed to co-operate with the Tribunal in Reference (IT) No.54 of 2013 for its expeditious hearing. The Tribunal is directed to hear and decide the said reference on or before 31st January 2016. The petitioner shall file written statement on or before 15th October 2015. It is clarified that I have not gone into the merits of the documents produced by both the parties and it is open for the Tribunal to consider the same in accordance with law and without being influenced by the order passed by this Court.
29. The petition is, accordingly, allowed. Rule is made absolute.
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30. At this stage, learned advocate Mr.
T.R.Mishra appearing for the respondent - workman has requested that this order be stayed for a period of four weeks with a view to file Letters Patent Appeal before the Hon'ble Division Bench of this Court. He submitted that the order of status-quo is in favour of the workman since 2013 and therefore in the facts of the present case this order be stayed. Learned advocate Mr. Patel has raised objection against the said request. However, I am of the opinion that in the interest of justice this order is required to be stayed for a period of four weeks. Hence, the operation and implementation of this order is stayed for a period of four weeks.
(VIPUL M. PANCHOLI, J.) Jani Page 31 of 31 HC-NIC Page 31 of 31 Created On Sun Feb 28 06:33:49 IST 2016