Gujarat High Court
Bhimani Khadi Gramodyog Sangh vs Jitendra Malshi Ninjar on 6 August, 2024
Author: A. S. Supehia
Bench: A.S. Supehia
NEUTRAL CITATION
C/LPA/33/2018 ORDER DATED: 06/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 33 of 2018
In R/SPECIAL CIVIL APPLICATION NO. 15171 of 2010
With
CIVIL APPLICATION (DIRECTION) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 33 of 2018
With
R/LETTERS PATENT APPEAL NO. 34 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 15174 of 2010
With
CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2024
In R/LETTERS PATENT APPEAL NO. 34 of 2018
In
R/SPECIAL CIVIL APPLICATION NO. 15174 of 2010
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BHIMANI KHADI GRAMODYOG SANGH
Versus
JITENDRA MALSHI NINJAR
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Appearance:
MR R G CHAUDHARY(6428) for the Appellant(s) No. 1
MR JEET RAJYAGURU, for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
and
HONOURABLE MRS. JUSTICE MAUNA M. BHATT
Date : 06/08/2024
COMMON ORAL ORDER
(PER : HONOURABLE MR. JUSTICE A.S. SUPEHIA)
1. ADMIT. Learned advocate Mr. Jeet Rajyaguru waives service of notice of admission on behalf of the respondent. Looking to the nature of controversy and since the dispute is going on from the year 2000, the main Letter Patent Appeals are taken up for hearing today.
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2. These appeals emanate from the judgments and orders dated 30.09.2009 passed in Reference (LCB) No. 12 of 2000 and order dated 16.08.2010 passed in I.D. Miscellaneous Application No. 7 of 2009. In Special Civil Application No. 15174 of 2010 award dated 19.06.2017 passed in captioned writ petitions filed by the Union challenging the award dated 30.09.2009 passed in Reference Case (LCB) No. 10 of 2000 by the Labour Court, Bhuj and Kachchh and also the order dated 16.08.2010 passed in I.D. Miscellaneous Application No. 11 of 2009.. Since the issue involved in the captioned writ petition and the judgement and order is analogous, the facts are incorporated from Letters Patent Appeal No. 33 of 2018.
3. The respondent - workmen raised an industrial dispute relation to their illegal termination from service. The said dispute culminated into reference proceedings being Reference (LCB) No. 10 of 2000 and Reference (LCB) No. 12 of 2000. The Labour Court allowed the reference proceedings and directed the appellant - Sangh to reinstate the workmen to their original post along with full back wages. The appellant - Sangh filed an application under Rule 26A of the Industrial Disputes Act (Gujarat Rules), 1966 seeking review as it was their case that it was an ex-parte award. However, it appears that the same was also rejected by the order dated 16.08.2010. Being aggrieved the appellant - Sangh filed the captioned writ petition, which was also rejected by the learned Single Judge. Hence, the present Letters Patent Appeals.
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4. Learned advocate Mr. R. G. Chaudhary for the appellant - Sangh submitted that the respondent - workmen had suppressed a vital fact before the Labour Court relating to the decree dated 09.05.2005 passed by the Court of learned Civil Judge, Mundra in Civil Suit No. 14 of 2003, wherein the suit filed by the appellant - Sangh was allowed and permanent injunction was granted restraining the respondent - workmen from interrupting the administration and management of the appellant - Sangh. Learned advocate has produced the same along with the Civil Applications and urged that appropriate criminal proceedings be initiated against respondent - workmen. So far as the impugned judgment of the learned Single Judge is concerned, it is submitted that the same is also required to be quashed and set aside. From the averments made in the appeal, it is noticed that the order passed by the learned Single Judge was primarily assailed on the ground that the initial award was an ex-parte award and hence, the Tribunal should have restored the reference. It is further submitted by learned advocate for the appellant - Sangh that due to heavy earthquake the appellant could not attend the proceedings. He has submitted that a contention was also raised before the learned Single Judge that the appellant is not an Industry.
5. Learned advocate Mr. Jeet Rajyaguru for the respondent - workmen has submitted that the impugned judgment and order passed by the learned Single Judge may not be quashed and set aside since the same is appropriately passed. So far as the decree passed in Civil Suit is concerned, he has submitted that the same Page 3 of 10 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Aug 20 2024 Downloaded on : Fri Aug 23 23:54:09 IST 2024 NEUTRAL CITATION C/LPA/33/2018 ORDER DATED: 06/08/2024 undefined would not in any manner affect the reference proceedings since while passing the judgment and decree, the Trial Court has also considered the pendency of reference proceedings relating to termination, whereas in the Civil Suit a prayer was sought for permanent restraining the workmen from entering the Sangh (Institute). Thus, it is submitted that it has nothing to do with the reference proceedings and the order passed by the learned Single Judge.
6. We are not reiterating the facts as recorded by the learned Single Judge. The termination of the respondent - workmen culminated into reference proceedings. A perusal of the award dated 30.09.2009 reveals that the Labour Court has given a categorical finding that the respondent - workmen were terminated without issuing any notice or notice pay or any compensation and after they were terminated, the Sangh had appointed new persons in the place of the respondent - workmen. It is also recorded that despite giving various opportunities to the appellant - Sangh, no reply was tendered, and neither any written nor oral evidence was adduced. It is also recorded that the respondent - Sangh did not cross-examine the workmen and accordingly, the termination was set aside and the respondents were directed to be reinstated with back wages.
7. It appears that thereafter, the appellant - Sangh filed I.D. Miscellaneous Application No.7 of 2009 under the provisions of Rule 26A of the Industrial Disputes Act (Gujarat Rules), 1966 for setting aside the ex-parte award. The said application was rejected by a Page 4 of 10 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Aug 20 2024 Downloaded on : Fri Aug 23 23:54:09 IST 2024 NEUTRAL CITATION C/LPA/33/2018 ORDER DATED: 06/08/2024 undefined comprehensive order passed by the learned Presiding Officer, Labour Court, Bhuj - Kachchh on 16.08.2010. It is recorded that the Labour Court had granted ample time of 9 years to the appellant - Sangh to adduce evidence or give the written statement however, the appellant did not even care to appear before the Labour Court.
8. At this stage, it is interesting to note that in the application seeking setting aside of the ex-parte award, there is no explanation tendered by the appellant - Sangh for delay except that there were some inter se dispute going on in the functioning of the Board of Trustees and when they received the copy of the award on 30.09.2009, they filed the application raising various contentions including the contention that the appellant - Sangh is not an Industry. In the said application, there is no averment made that the respondents were not its employees and the sole contention raised in the application was with regard to the non-maintainability of the reference proceedings on the ground that the appellant - Sangh is not an Industry. The Labour Court again allowed the appellant - Sangh to produce evidence, while deciding the application. It appears that the contention was only confined that the reference proceedings are not maintainable since the appellant - Sangh will not fall within the definition of "Industry". It is recorded that the advocate representing the appellant was also present, however, the appellant - Sangh did not adduce any evidence. It is also recorded at the time of closing evidence, the advocate on behalf of the appellant - Sangh was also present. The Labour Court has disbelieved the explanation about the internal Page 5 of 10 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Aug 20 2024 Downloaded on : Fri Aug 23 23:54:09 IST 2024 NEUTRAL CITATION C/LPA/33/2018 ORDER DATED: 06/08/2024 undefined conflicts in the Sangh by recording that it is unbelievable that for 9 years such disturbance and conflict has been going on in the appellant - Sangh. The learned Single Judge has also dealt with the contention raised relating to the issue as to whether the appellant - Sangh would fall within the definition of the "Industry" or not. The learned Single Judge has observed thus:-
"25. Any other contention is not raised in the petition. Likewise, today, even at the time of hearing of the petition any other contention is not raised. So far as the contention that the petitioner is not an industry, is concerned, from the submission by learned advocate for the petitioner it has emerged that the petitioner also undertakes activity of preparing / selling pickles. It has also emerged from the record that the petitioner is registered as Khadi and Village Industry with the Khadi and Village Industries Commission. It is undisputed fact that for the activity of manufacturing / selling pickles, etc. the petitioner employs workman to carry on its activities.
26. In this background, when the petitioner's contention that it is not an industry, is examined in light of the decision by Hon'ble Apex Court in case of Bangalore Water Supply & Sewerage Board v. A. Rajappa & Ors. [(1978) 2 SCC 213] it emerges that the contention is without merits. On this count, it would be profitable to also consider the observation by Hon'ble Apex Court in case of Gopal Vs. Administrative Officer, Madhya Pradesh Khadi and Village Industries Board and others [AIR 1986 SC 504]. From the observations in said decision - whereby Hon'ble Apex Court confirmed the decision by High Court that Khadi Board is industry.
27. Having regard to the observations in said two decisions the contention raised by the petitioner on the ground that it is not an industry and therefore, the award may be set aside, cannot be accepted and sustained. The said contention deserves to be rejected and is accordingly rejected.
28. It is relevant to take into account that the claimant had raised specific contention before the learned Labour Court to the effect that his service was terminated without payment of compensation as contemplated under Section 25F and that before terminating his service, the principle of seniority as contemplated under Rule 81 and Section 25G was Page 6 of 10 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Aug 20 2024 Downloaded on : Fri Aug 23 23:54:09 IST 2024 NEUTRAL CITATION C/LPA/33/2018 ORDER DATED: 06/08/2024 undefined not followed and that after his service was terminated, another person was engaged by the employer and that the activities of the opponent employer are continued and that his service was not terminated on ground of any misconduct and/or after conducting enquiry and granting opportunity of hearing.
29. The said contentions were reiterated and established by the workman in his affidavit.
30. The workman, as mentioned above, was not subjected to cross-examination and therefore, his evidence remained uncontroverted.
31. Even in present petition the petitioner has neither disputed said contentions, details and facts nor the petitioner has placed any material on record to even prima facie demonstrate that the procedure prescribed under law i.e. under Section 25F and/or Section 25G and/or Section 25H or Rule 81 were followed by the petitioner and it is not the case even of the petitioner that the claimant's service was not terminated with effect from 31.3.1999 and/or when the petitioner was terminated the procedure prescribed by law was followed. It is also not the case of the petitioner, even in the petition, that the claimant did not work with the establishment for 2 years and/or that his claim that he had worked for more than 240 days in every year, is incorrect. Any other material to controvert such assertion by the workman is not placed on record. Even any contention on such ground is not found in the petition. The order passed by the learned Labour Court does not suffer from any infirmity, much less any error of law. The petitioner has failed to make out any ground against the award and he has also failed to show any material from record which could convince the Court to take view different from the view taken by the learned Labour Court and to disturb the award."
9. Thus, the learned Single Judge has categorically recorded that even at the time of hearing of the petition, no other contention is raised except the contention that the appellant - Sangh is not an Industry. The learned Single Judge has dealt with the same and after placing reliance on the judgment of the Supreme Court, as mentioned hereinabove, has held that the appellant - Sangh, which carries the activity of manufacturing and selling pickles and etc., Page 7 of 10 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Aug 20 2024 Downloaded on : Fri Aug 23 23:54:09 IST 2024 NEUTRAL CITATION C/LPA/33/2018 ORDER DATED: 06/08/2024 undefined will fall within the definition of "Industry". The learned Single Judge has also recorded that the termination of the respondent - employees was in violation of provisions of Sections 25 of 25G of the Industrial Disputes Act. Thus, even before the learned Single Judge the appellant has not raised any contention and has not disputed the contention raised by the respondent - employees. No material was produced before the learned Single Judge in the writ petition to demonstrate that the procedure prescribed under the provisions of Sections 25F or 25G or 25H of the Industrial Dipsutes Act or Rule 81 were ever followed by the appellant - Sangh before terminating the services of the respondent - workmen w.e.f. 31.03.1999. Neither before the Labour Court nor before the learned Single Judge contention is raised by the appellant - Sangh that the respondent - workmen have not worked for a period of 240 days in 2 years and such assertion made by the respondent - workmen before the Labour Court in their Statement of Demand was not controverted by the appellant - Sangh neither before the Labour Court nor before the learned Single Judge.
10. Hence, while examining the matter in Letters Patent Appeal, we cannot travel beyond the established facts. It is also very surprising to note that for the very first time in the present Letters Patent Appeal, the appellant - Sangh has come out with a case of suppression of facts i.e. suppression of the judgment and decree dated 09.05.2005 passed by the Court of learned Civil Judge, Mundra in Regular Civil Suit No. 14 of 2003 by the respondent - employees. In fact, by filing the connected Civil Application a Page 8 of 10 Uploaded by SHRIJIT PILLAI(HC01400) on Tue Aug 20 2024 Downloaded on : Fri Aug 23 23:54:09 IST 2024 NEUTRAL CITATION C/LPA/33/2018 ORDER DATED: 06/08/2024 undefined prayer is sought to register a criminal complaint against the respondent - workmen for suppressing the said facts.
11. Since, learned advocate Mr. Chaudhary for the appellant - Sangh had very strenuously argued on the said fact, we have examined the judgment and decree passed by the Civil Court. A perusal of the judgment dated 09.05.2005 passed in Regular Civil Suit No. 14 of 2003 will clarify that in fact that the appellant - Sangh had sought a declaration in the nature of permanent injunction restraining the respondent - employees from entering into the premises of the Sangh and not to disturb them since they were already terminated. The Civil Court had restrained the respondent - workmen from entering the premises of the appellant
- Sangh. It is also noticed that the Civil Court had also taken cognizance of the reference proceedings between the employees and the Sangh. Thus, the injunction granted by the Civil Court will not have any bearing on the termination of the respondent - workmen as the same were independent proceedings and the Regular Civil Suit was only confined to seeking declaration restraining the respondent - workmen from entering the appellant - Sangh premises. Since, it was the case of the appellant - Sangh in the Civil Suit that even after termination, the respondent - workmen used to misbehave by entering the premises of the Sangh. Hence, this contention, which is raised for the first time in Letters Patent Appeal, also does not merit acceptance.
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12. On the overall appreciation of the facts, we are not inclined to interfere with the judgment and order passed by the learned Single Judge. Hence, the present appeals fail and the same are dismissed.
13. In view of disposal of the main matters, the connected Civil Applications would not survive. The same stands disposed of.
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