Gujarat High Court
Urja Products Pvt. Ltd. vs Kokilaben G Chauhan on 29 September, 2020
Author: Sangeeta K. Vishen
Bench: Sangeeta K. Vishen
C/SCA/4173/2020 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 4173 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4183 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4176 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4189 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4187 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4182 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4177 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4179 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4184 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4188 of 2020
With
R/SPECIAL CIVIL APPLICATION NO. 4185 of 2020
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URJA PRODUCTS PVT. LTD.
Versus
KOKILABEN G CHAUHAN
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Appearance:
MR.VARUN K.PATEL(3802) for the Petitioner(s) No. 1
MR P C CHAUDHARI(5770) for the Respondent(s) No. 1
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CORAM: HONOURABLE MS. JUSTICE SANGEETA K. VISHEN
Date : 29/09/2020
COMMON ORAL ORDER
1. Mr. Varun K. Patel, learned advocate for the petitioner submitted that at the time of passing the orders of dismissal, all dated 11.1.2019, Reference (IT) No.102 of 2017 with respect to demand for wage revision and other conditions of service was pending before the Industrial Tribunal, Ahmedabad. Therefore, the petitioner filed Approval Application No.44 of 2019 under clause (b) of sub-section (2) of Section Page 1 of 10 Downloaded on : Thu Oct 01 21:51:21 IST 2020 C/SCA/4173/2020 ORDER 33 of the Industrial Disputes Act, 1947 (hereinafter referred to as the 'Act of 1947'). The respondents were also paid wages for one month as contemplated under sub-section (2) of Section 33 of the Act of 1947 at the time of dismissal. The Tribunal, in the present case, ought to have examined the legality and validity of action of dismissal of the respondents on merits instead of simply rejecting the approval application on the basis of preliminary contentions raised by the respondents vide Exhibits 8 and 60. It is not that the wages were not paid but, the wages which were paid were less by Rs.80/- inasmuch as the operative portion of the order dated 19.6.2018, directing enhancement of wags by Rs.80/- was ad hoc and was not final. This Court, vide order dated 22.1.2019, has stayed the order dated 19.6.2018 of the Industrial Tribunal; therefore, the interim order does not partake the character of wages as defined in clause (rr) of Section 2 of the Act of 1947 inasmuch as, ad hoc payment does not become wages as it is only an interim payment.
2. Reliance is placed on the judgment of this Court in the cases of (i) Gandhi Prakashchandra Harikrishna vs. Gujarat State Road Transport Corporation & Anr., reported in 1996 (1) GLH 1024; and (ii) Divisional Controller, G.S.R.T.C. vs. Conciliation Officer & Ors., reported in 1999 (1) GLH 551. It is submitted that this Court, while interpreting provisions of clause (b) of sub-section (2) of Section 33 of the Act of 1947, has observed and held that the intention of the legislature in providing for such contingency was to soften the rigour of unemployment that would be faced by the workman, against whom an order of discharge or dismissal is passed. It is observed that one is to see as to whether the purpose of softening the rigour of hardship of unemployment stands served or not. If that purpose is served the condition precedent contemplated under Section 33(2)(b) must be deemed to be satisfied and the requirement of law stands substantially complied with. Reliance Page 2 of 10 Downloaded on : Thu Oct 01 21:51:21 IST 2020 C/SCA/4173/2020 ORDER is also placed on the judgment in the case of H.D. Sharma vs. Northern India Textile Research Association & Anr. reported in AIR 2019 SC 431. While interpreting the provisions of clause (y) of Section 2 as well as Section 6E (2) of the UP Industrial Disputes Act, 1947, which provision is in pari materia with the provision of Section 33(2)(b) of the Act of 1947, it has been held by the Apex Court that if such amount had been paid regularly in compliance with the terms of employment, it has to be regarded as wages or its component within the meaning of clause (y) of Section 2 of the Act of 1947. In order that any payment is regarded as 'wages', it must be proved that it was being paid by the employer to his employee pursuant to the terms of his employment. Thus, it is submitted that in the present case, as aforesaid, the amount of Rs.80/- directed to be paid vide order dated 19.6.2018 was interim wages and cannot be termed to be the wages as defined under clause (rr) of Section 2 of the Act of 1947.
3. Adverting to the aspect of conferment of protected workmen, it is submitted that the petitioner issued show cause notice to the respondents for initiating disciplinary action against them. Thereafter, on 20.9.2018, demand was raised by the Union to the Management seeking protection to five employees, the said demand came to be rejected on 26.9.2020, which led to filing of conciliation case before the Conciliation Officer followed by passing of the order dated 22.1.2019, i.e. subsequent to the order of dismissal dated 11.1.2019 passed by the petitioner. It is submitted that it is only when the workman is declared as protected workman under sub-section (4) of Section 33 that the provisions of sub-section (3) of Section 33 will come into picture. It is, thus, urged that the petitions require consideration and the order dated 17.9.2019 deserves to be stayed together with the proceedings of Recovery (C-1) Application No.78 of 2019 filed by the Union, i.e. Gujarat Audhyogik Kamdar Maha Mandal, representing the workmen.
Page 3 of 10 Downloaded on : Thu Oct 01 21:51:21 IST 2020 C/SCA/4173/2020 ORDER4. On the other hand, Mr. P. C. Chaudhari, learned advocate for the respondent appearing on caveat, dealing with the contentions raised by the petitioner as regards the order dated 22.1.2019 taking effect on the date it is passed, submitted that it is required to be noted that though the order is passed on 22.1.2019, it relates back to the date of the application, i.e. 20.9.2018.
5. It is submitted that as per the requirement of sub-rule (1) of Rule 66 of the Industrial Dispute (Gujarat) Rules, 1966 (hereinafter referred to as the 'Rules of 1966'), the concerned Union connected with an industrial establishment, shall communicate to the employer before 30 th September of every year, the names and addresses of such of the officers of the Union who are employed in that establishment and who, in the opinion of the Union, should be recognised as 'protected workmen'.
6. Undisputedly, the Union submitted the demand on 20.9.2018 and the said application came to be rejected by the management on 26.9.2018. It is thereafter that the Conciliation Officer, Ahmedabad Division, Ahmedabad passed an order under Rule 66 of the Rules of 1966 read with sub-section (4) of Section 33 of the Act of 1947, granting the respondents the status of protected workmen. The said order dated 22.1.2019 shall be deemed to have come into effect from 20.9.2018, i.e. the date on which the Union submitted the demand to the Conciliation Officer.
7. Reliance has been placed on the judgment of this Court in the case of R. Balasubramaniam vs. Carborandum Universal Ltd., Okha, reported in 1976 GLR 787. It is submitted that this Court has, inter alia, held that the whole scheme of benevolent protection envisaged by the Legislature would remain a dead letter if it is sought to be interpreted by holding that the recognition takes effect only from the date of the Page 4 of 10 Downloaded on : Thu Oct 01 21:51:21 IST 2020 C/SCA/4173/2020 ORDER decision of the Conciliation Officer. It is, thus, submitted that the petitioner was obligated in law to file an application under sub-section (3) of Section 33 and not under sub-section (2) of Section 33 seeking approval. On this count alone, the action of the petitioner with respect to five respondents is bad in law and the Tribunal did not commit any error in accepting the preliminary objection raised by the respondents.
8. While adverting to the aspect of infraction of the requirement envisaged in sub-section (2) of Section 33 as regards non-payment of wages for one month, it is submitted that the proviso to sub-section (2) of Section 33 contemplates that no workman shall be discharged or dismissed unless he has been paid wages for one month and an application has been made by the employer to the authority before which, the proceeding is pending for approval of the action taken by the employer.
9. It is next submitted that clause (b) of Section 2 defines the term 'award' to mean an interim or a final determination of any industrial dispute or of any question relating thereto by any Labour Court. Apparently, the order dated 19.6.2018 passed by the Industrial Tribunal below Exhibits 11 and 26, has all the trappings of the term 'award' which includes an interim or final determination of any industrial dispute or of any question relating thereto. Therefore, by virtue of the order dated 19.6.2018, the petitioner was directed to pay to the respondents the enhanced daily wage of Rs.80/- with effect from 1.4.2018. The order dated 19.6.2018 remained unchallenged till 22.1.2019 when this Court passed an order in Special Civil Application No.17240 of 2018 recording the statement that the voluntary increase of Rs.35/- per day with effect from 1.4.2018 is paid. The submission of the employee regarding the question about implementation was directed to be considered on the returnable date. Therefore, when the petitioner passed an order dated 11.1.2019, the petitioner was obligated to pay to the respondents the Page 5 of 10 Downloaded on : Thu Oct 01 21:51:21 IST 2020 C/SCA/4173/2020 ORDER wages as per the order dated 19.6.2018 passed by the Industrial Tribunal.
10. It is next submitted that the action of the petitioner is nothing, but the action of victimisation and only with a view to throwing out the leaders, i.e. the respondents. It is, thus, urged that the petitions do not deserve to be entertained and be dismissed in limine.
11. Heard Mr. Varun K. Patel, learned advocate for the petitioner and Mr. P. C. Chaudhari, learned advocate for the respondents in all the petitions, through video conferencing.
12. The issues involved in the present writ petitions are, firstly, as to whether the petitioner could have filed an application under clause (b) of sub-section (2) of Section 33 of the Act of 1947 seeking approval, more particularly, when five respondents in the group of writ petitions were declared as protected workmen and secondly, as to whether the petitioner has observed the provisions of sub-section (2) of Section 33 before discharging or dismissing the respondents by paying wages for one month.
13. Learned advocates for the respective parties have raised contentious issues relating to the provisions of Section 33 of the Act of 1947 vis-a-vis the aspects viz. conferment of the status of protected workmen upon the respondents as well as the infraction of procedure provided by virtue of proviso to Section 33(2) of the Act of 1947 before passing the orders dismissing the respondent workmen. Therefore, the issues raised and contentions urged as well as consequential issue of 'no work no pay' require deeper consideration.
14. Hence, Rule returnable on 21.1.2021.
Page 6 of 10 Downloaded on : Thu Oct 01 21:51:21 IST 2020 C/SCA/4173/2020 ORDER15. So far as the aspect of interim relief is concerned, having regard to the facts of the case, limited conditional protection is granted, as discussed hereinafter.
16. Pertinently, the workmen through the Union for better service conditions and other facilities have raised industrial dispute before the Tribunal being Reference (IT) No.102 of 2017. During the pendency of the said reference, the representative of the workmen had preferred an interim relief application, seeking interim relief towards wage increase, which came to be allowed by the Tribunal, vide order dated 19.6.2018 giving the wage rise by Rs.80/- per day over and above the voluntary rise given by the petitioner of Rs.35/-.
17. The order under challenge is dated 17.9.2019 passed by the Industrial Tribunal whereby, the applications Exhibits 8 and 60 filed by the workmen raising preliminary objection came to be allowed. Resultantly, Approval Application No.44 of 2019 and other allied applications filed by the petitioner under the provisions of clause (b) of sub-section (2) of Section 33 of the Act of 1947 stood rejected. The approval applications were filed seeking approval of the dismissal order dated 11.1.2019 passed by the petitioner pursuant to the inquiry initiated vide show-cause notice dated 13.8.2018 for commission of the misconduct.
18. Adverting to the aspect of protected workmen, it is required to be noted that the respondent Union, as required under sub-section (4) of Section 33 read with sub-rule (1) of Rule 66, submitted an application on 20.9.2018, which came to be rejected by the petitioner as provided under sub-rule (2) of Rule 66, which led to the filing of conciliation case before the Conciliation Officer. The Conciliation Officer vide order dated 22.1.2019 declared and/or granted five respondents the status of protected workmen.
Page 7 of 10 Downloaded on : Thu Oct 01 21:51:21 IST 2020 C/SCA/4173/2020 ORDER19. Perceptibly, the said order dated 22.1.2019 passed by the Conciliation Officer has not been challenged. The said order has attained finality as of today. It is also not in dispute that the order dated 22.1.2019 will relate back to the date of application, i.e. 20.9.2018 and for all practical purposes, the status conferred of protected workmen to the respective respondents will be considered from that particular date. This Court, in the case of R. Balasubramaniam vs. Carborandum Universal Ltd., Okha, reported in 1976 GLR 787, has observed in paragraph 9 to the effect that the scheme of the benevolent protection envisaged by the Legislature would remain a dead letter if it is sought to be interpreted by holding that the recognition takes effect only from the date of the decision of the conciliation officer. The aforesaid proposition has not been disputed by the learned advocate for the petitioner. Thus, when the order dated 11.1.2019 came to be passed by the petitioner, the respondents workmen concerned were very much the protected workmen and if the petitioner was desirous of dismissing or discharging them, prima facie, the course available to the petitioner was not under sub-section (2) of Section 33 of the Act of 1947, but was of seeking permission under sub-section (3) of Section 33.
20. Similarly, so far as the second aspect is concerned, viz. infraction of proviso to sub-section (2) of Section 33 of the Act of 1947, it is required to be noted that the Reference (IT) No.102 of 2017 was pending before the Tribunal and the Tribunal vide Exhibit 11 as well as Exhibit 27, passed an order dated 19.6.2018. By the said order, the Tribunal has directed the petitioner to pay an additional amount of Rs.80/- over and above the voluntary wage rise of Rs.35/- declared by the petitioner with effect from 1.4.2018. The said interim order remained unchallenged till the filing of the writ petition being Special Civil Application No.17240 of 2018 and it is only on 22.1.2019 that this Court passed the following order:
Page 8 of 10 Downloaded on : Thu Oct 01 21:51:21 IST 2020 C/SCA/4173/2020 ORDER"It is stated that so far as the direction contained in paragraph No.14 of the order dated 19.6.2018 passed by the Industrial Tribunal in Reference (IT) No.102 of 2017, voluntary increase of Rs.35/- per day with effect from 1.4.2018 is paid to the employees. The submission made by the learned advocate for the employees regarding the question about implementation of rest of the directions will be considered on the returnable date."
Meaning thereby, it is only on 22.1.2019 that this Court left the question of implementation of the directions to be considered on the returnable date. However, from 19.6.2018 till 22.1.2019, there was no stay operating. Therefore, on 11.1.2019, i.e. the date of the dismissal of the respondents, the order dated 19.6.2018 was very much in currency for being implemented. As per the order dated 19.6.2018, the wage which the petitioner was obligated to pay, was the wages plus voluntary rise plus additional Rs.80/-. The petitioner, while taking the action of passing the order dated 11.1.2019, has not paid the wages for one month as directed by the Tribunal vide order dated 19.6.2018. When the order of dismissal dated 11.1.2019 was passed by the petitioner, the petitioner was obligated to pay the wages as directed by the Tribunal and thus, prima facie, there appears to be an infraction of proviso to sub-section (2) of Section 33 of the Act of 1947. Quite apart, the Tribunal has passed the order on 17.9.2019, however, the petitions have been filed after delay of almost 5 months.
21. In view of the aforesaid discussion, the petitioner has not made out any case to stay the order dated 17.9.2019. However, it is reported that after the order dated 17.9.2019, the respondents have initiated the proceedings by filing Recovery (C-1) Application No.78 of 2019 before the Labour Court. This Court, with a view to balancing the equities between the parties, is of the opinion that further proceeding of Recovery (C-1) Application No.78 of 2019 deserves to be stayed and is hereby stayed on condition of petitioner depositing last drawn wages, for the period from January 2019 to September 2020. The said amount Page 9 of 10 Downloaded on : Thu Oct 01 21:51:21 IST 2020 C/SCA/4173/2020 ORDER shall be deposited with the Tribunal, which, in turn, shall invest the same in a cumulative fixed deposit with any nationalised bank, initially for a period of one year and thereafter to be renewed from time to time till the final disposal of the writ petitions.
Direct service is permitted.
(SANGEETA K. VISHEN, J) Bharat/cmk Page 10 of 10 Downloaded on : Thu Oct 01 21:51:21 IST 2020