Gujarat High Court
Manager/ Owner Globe Textile (India) ... vs Prakashbhai Rajabhai Dalsaniya on 21 April, 2022
Author: Biren Vaishnav
Bench: Biren Vaishnav
C/SCA/7874/2022 ORDER DATED: 21/04/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 7874 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 7151 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 7173 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 7174 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 7206 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 7208 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 7212 of 2022
With
R/SPECIAL CIVIL APPLICATION NO. 7396 of 2022
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MANAGER/ OWNER GLOBE TEXTILE (INDIA) LTD.
Versus
PRAKASHBHAI RAJABHAI DALSANIYA
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Appearance:
RC JANI & ASSOCIATE(6436) for the Petitioner(s) No. 1
for the Respondent(s) No. 2
MR P C CHAUDHARI(5770) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE BIREN VAISHNAV
Date : 21/04/2022
ORAL ORDER
1. Heard learned advocates for the parties.
2. The awards passed by the Labour Court granting reinstatement with backwages have been challenged by the common petitioner - employer - Manager/Owner Globe Textile (India) Ltd.
3. Mr. R.C. Jani, learned advocate appearing for the petitioner would submit that in view of the fact that the petitioner is an SEZ, by virtue of the amendment in the Industrial Disputes Act, 1947 (for short 'the Act') Page 1 of 6 Downloaded on : Wed Apr 27 20:21:10 IST 2022 C/SCA/7874/2022 ORDER DATED: 21/04/2022 namely 2(k), termination if falls within Chapter VD of the Act would not be industrial dispute. In other words, his submission is that Chapter VA and Chapter VB of the Act, which require the employer to follow the provisions of Section 25F are not applicable to the petitioner industry. Inviting the court's attention to Chapter VD of the amended Act he would submit that the statutory requirements as envisaged under Section 25ZA have been satisfied inasmuch as though the provisions of Section 25ZAb provide for compensation to the extent of 45 days, 60 days compensation has been paid. He would submit that since the industry is exempted from Chapter VA and VB of the Act, it is not mandatory for the employer to follow the provisions of Section 33 of the Act. He would draw the attention of the court to the cross examination of the representative of the Union and submit that to the question put in the cross examination the witness had denied that the Union of the employer was not a recognised union.
4. Mr. P.C. Chaudhari, learned advocate for the respondent inviting the attention of the court to the findings of the Labour Court with regard to the provisions of Section 33 of the Act would submit that assuming for the sake of argument that the employer has followed the provisions of Section 25-ZA(1) of Chapter VD, the provisions of Section 33 will apply irrespective of applicability of Chapter VD inasmuch as Section 33 would fall under "Miscellaneous Provisions" which are mandatory in nature.
5. Perusal of the award of the Labour Court particularly paras 12.1 onwards would indicate that from the deposition of the witness namely Shri Prabhuchandra Parshottamdas Panchal of the Union, it has come on record that a reference being LCA No. 27 of 2018 was pending before the appropriate Labour Court. The Labour Court having interpreted Section Page 2 of 6 Downloaded on : Wed Apr 27 20:21:10 IST 2022 C/SCA/7874/2022 ORDER DATED: 21/04/2022 33 in context of the decisions of the Apex Court rendered in Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. vs. Ram Gopal Sharma and Others reported in (2002) 2 SCC 244 and M/s. New India Motors (P.) Ltd., New Delhi vs. K.T. Morris reported in AIR 1960 SC 875 has held that provisions of Section 33 are mandatory in nature and there is no reason why by virtue of the employer being SEZ and being exempted from the provisions of Chapters VA and VD is not required to follow Section 33 of the Act is held to be bad.
5.1 Appreciating the provisions of the Industrial Disputes Act, namely Sections 2(s) and Sections 2(k) of the Act, what emerges is that under Section 2(k), the term Industrial Dispute would not include termination of service of a workman in accordance with the provisions of Chapter VD. The Labour Court also considered the provisions of Chapter VD i.e. Sections 25V, 25W, 25Y and 25ZA of the Act in context of Section 33 of the Act. Discussing the issue of pending reference case and violation of provisions of Section 33 of the Act, the Labour Court found that the workman had produced a charter of demand as Conciliation Case No. 1 of 2017 which was pending before the Labour Commissioner. The examination of the witness also suggested the pendency of the reference. Looking to the provisions therefore the Labour Court found that the provisions of Section 33(1) and (2) are mandatory and therefore need to be followed irrespective of the industry being under the SEZ.
5.2 Mr. Jani's submission that by virtue of the amendment to Section 2(k), Chapters VA to VB were not applicable to the petitioner company by virtue of it coming under the purview of Chapter VD would not ipso facto exempt it from the mandatory provisions of Section 33 of the Act. While allowing the reference, the Labour Court has considered the Page 3 of 6 Downloaded on : Wed Apr 27 20:21:10 IST 2022 C/SCA/7874/2022 ORDER DATED: 21/04/2022 decision in the case of M/s. New India Motors (P.) Ltd. (supra). Para 9 of the decision reads as under:
"9. In this connection the object of s. 33 must also be borne in mind. It is plain that by enacting s. 33 the Legislature wanted to ensure a fair and satisfactory enquiry of the industrial dispute undisturbed by any action on the part of the employer or the employee which would create fresh cause for disharmony between them. During the pendency of an industrial dispute status quo should be maintained and no further element of discord should be introduced. That being the object of s. 33 the narrow construction of the material words used in s. 33(1)(a) would tend to defeat the said object. If it is held that the workmen concerned in the dispute are only those who are directly or immediately concerned with the dispute it would leave liberty to the employer to alter the terms and conditions of the remaining workmen and that would inevitably introduce further complications which it is intended to avoid. Similarly it would leave liberty to the other employees to raise disputes and that again is not desirable. That is why the main object underlying s. 33 is inconsistent with the narrow construction sought to be placed by the appellant on the material words used in s. 33(1)(a)."
5.3 Even in the case of Jaipur Zilla Sahakari Bhoomi Vikas Bank Ltd. (supra), paras 6, 7 and 15 read as under:
"6. Answer to the question on which conflicting decisions are rendered, as noticed above, depends on a fair reading and proper interpretation of Section 33(2)(b) of the Act. Prior to the amendment of 1956, provision contained in Section 33 corresponded to the present Section 33(1) only. The object behind enacting Section 33, as it stood before it was amended in 1956, was to allow continuance of industrial proceedings pending before any authority/court/tribunal prescribed by the Act in a peaceful atmosphere undisturbed by any other industrial dispute. In course of time, it was felt that unamended Section 33was too stringent for it placed a Page 4 of 6 Downloaded on : Wed Apr 27 20:21:10 IST 2022 C/SCA/7874/2022 ORDER DATED: 21/04/2022 total ban on the right of the employer to make any alteration in conditions of service or to make any order of discharge or dismissal even in cases where such alteration in conditions of service or passing of an order of dismissal or discharge, was not in any manner connected with the dispute pending before an industrial authority. It appears, therefore, that Section 33was amended in 1956 permitting the employer to make changes in conditions of service or to discharge or dismiss an employee in relation to matters not connected with the pending industrial dispute. At the same time, it seems to have been felt that there was need to provide some safeguards for a workman who may be discharged or dismissed during the pendency of a dispute on account of some matter unconnected with the dispute. This position is clear by reading re- drafted expanded Section 33 in 1956 containing five sub-sections. For the present purpose, we are concerned with the proviso to Section 33(2)
(b). The material and relevant portion of Section 33 reads:-
"33. Conditions of service, etc. to remain unchanged under certain circumstances during pendency of proceedings. -- (1)..............
(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute or, where there are no such standing order, in accordance with the terms of the contract, whether express or implied, between him and the workman -
(a) ..........................
(b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman;
Provided that no such 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."
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7. The proviso expressly and specifically states 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. It is clear from the proviso to Section 33(2)
(b) that the employer may pass an order of dismissal or discharge and at the same time make an application for approval of the action taken by him. In the Strawboard case (supra) dealing with the contention that if the employer dismisses or discharges a workman and then applies for approval of the action taken and the tribunal refuses to approve the action, the workman would be left with no remedy as there is no provision for reinstatement in Section 33(2), it is held that:
"if the tribunal does not approve of the action taken by the employer, the result would be that the action taken by him would fall and thereupon the workman would be deemed never to have been dismissed or discharged and would remain in the service of the employer".
6. In view of the above, finding no fault with the awards impugned, these petitions are dismissed.
(BIREN VAISHNAV, J) DIVYA Page 6 of 6 Downloaded on : Wed Apr 27 20:21:10 IST 2022