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Dipak Chimanlal Patel v/s Mahendrabhai P. Chavda Or His Successor In Office As Member & Another

    SCA No. 19094 of 2007

    Decided On, 02 May 2017

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MS. JUSTICE SONIA GOKANI

    For the Petitioner: Ashish B. Desai, Advocate. For the Respondents: R1, Hemang M. Shah, R2, K.M. Patel, Varun K. Patel, Advocates.



Judgment Text

Oral:

1. Petitioner herein is aggrieved by the award passed by the Industrial Tribunal, Vadodara (hereinafter referred to as " the Tribunal") in Complaint (I.T.) No.14 of 1999.

2. The brief facts leading to the present petition are as follows:

2.1 The petitioner workman was working with respondent No.2 Company (hereinafter referred to as "the respondent Company) with effect from 23.1.1981 as Maintenance Fitter. His services came to be abruptly terminated by the employer with effect from 24.10.1997. No chargesheet was given. Though there were certain baseless allegations made against him, inquiry, contemplated under the Model Standing Orders, has not been held and straight away punitive order of discharge came to be passed. The petitioner, being an active member of Gujarat Rajya Kamdar union, had challenged the same on the ground of victimization and unfair labour practice. The illegality of the entire issue was verified by respondent No.2 on persuasion of the Union. However, the management refused to allow him to join the duty and insisted on his resignation.

3. It is the case of the petitioner that permanent absorption of some of the members, Reference was preferred by some coworkers, which was pending before the Industrial Tribunal, Vadodara. It is the case of the petitioner that respondent No.2 ought to have preferred an application for approval under section 33(2)(b) of the Industrial Disputes Act, 1947 ("the I.D. Act" for short). Any breach of section 33 of the I.D. Act would not permit any implementation of the order of the petitioner workman. He is also entitled to file complaint under section 33A of the Act. The Tribunal adjudicated the complaint, where the petitioner examined himself as witness and was also cross-examined. No witness was cross-examined for and on behalf of the respondentCompany. The pet

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tioner was denied the relief he claimed before the Tribunal. He, therefore, is before this Court challenging the decision relying, essentially, on the decision of the Apex Court rendered in the case of Digwadih Colliery v. Ramji Singh reported in (1961) II LLJ 551(SC). It is the say of the petitioner that without understanding the object, the Tribunal has rejected his request. The dispute, which is pending in relation to other employees, was in connection with giving permanent status to temporary drivers. The petitioner, being a member of the Union, had played a role in collectively sponsoring such dispute under section 10(1) of the I.D. Act, and therefore, by way of this petition, he has sought the following reliefs:"8. Under the circumstances and in view of all above, the Petitioner most respectfully prays before Your Lordships that; Be pleased to issue writ of certiorari, writ of mandamus or any other appropriate writ, order or direction(A) To quash and set aside the impugned Award Annexure 'A' and further direction and order allowing the Complaint No.14/99 fully in terms of its prayers.(B) Be pleased to stay the operation effect of the impugned Award and direct the respondent employer to provide work to the Petitioner subject to final result of the petition by way of interim relief.(C) Exparte Adinterim relief in terms of paragraph (B) above may be granted.(D) Any other appropriate or direction which Your Lordships deems fit in the interest of justice may be passed.(E) Cost of this petition may be granted to the Petitioner."4. There is no specific denial by way of affidavit in reply, however, the respondent company has filed a detailed reply before the Tribunal. This Court has heard learned advocate Mr. A.B. Desai for the petitioner and learned advocate Mr. Varun Patel for Mr. K.M. Patel for the respondent Company. It is argued fervently by learned advocate Mr. Desai for the petitioner that the decision of the Apex Court in the case of Digwadih Colliery (supra) would come to the rescue of the petitioner. The Tribunal had not appreciated the fact that the petitioner was the workman concerned in the dispute which was pending. If such a dispute is limited to the workman actually concerned in such dispute, bearing in mind the scheme of the Act and the fact of its material and relevant provisions, the Court ought not to have given a limited construction to this class. He further pointed out that definition of the Industrial Tribunal, as per section 2(k) of the I.D. Act, would mean any dispute or difference between the employers and workmen, or between workmen and workmen, which is connected with the employment or non employment, or the terms of employment, or with the conditions of labour, of any person. The Apex Court, therefore, has held that in such dispute between the employer on the one hand and his employees acting collectively on the other, essentially, the nature of industrial dispute must be borne in mind in interpreting section 33(1)(a) of the I.D. Act.He further urged that he was in the cadre of Fitter and other disputes, which were pending before the Tribunal, being Reference (I.T) No.14 of 1991, were of Class IV employees and drivers and, yet they would have had direct bearing on the subject and the outcome would have affected the petitioner. He urged that without holding any departmental proceedings and giving any opportunity, his services came to be terminated.5. Learned advocate Mr. Varun Patel for respondent Company has pointed out to this Court that while taking into consideration the decision in the case of M/s. New India Motors (P) Ltd, New Delhi v. K.T. Morris, (1960) I LLJ 551, the Apex Court has distinguished the same on facts by holding that given the nature of dispute, the workman could not be given the status of protected workman. It ought to have been established that the person was a workman concerned with the dispute, which is pending. He has urged that in no manner, the dispute, which was pending and which eventually got settled, would have any bearing on the employment of the petitioner. Therefore, the Court was right in holding that he was not concerned with the dispute which is pending. The short question that requires to be addressed by this Court is as to whether the petitioner could be said to be a person, who was concerned with the dispute and would he, therefore, be a protected workman in whose case, without seeking the permission of the Tribunal, no order could have been passed by the authority.6. The decision of New India Motors (p) Ltd. New Delhi v. K.T. Morris (supra) was rendered on 22.3.1960, where the question was of interpretation of the expression "workmen concerned". Whether the expression in the context of section 33(1)(a) refers not only to the workmen directly or actually concerned in the dispute referred, but reference was also of workmen on whose behalf the dispute has been raised as well as those, who would be bound by the award which may be made in that dispute. The Court held that 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 section 33, the narrow construction of the material words used in section 33(1)(a) would tend to defeat the said object. Section 33(1)(a) as it stood prior to amendment of 1956 provided, inter alia, that during the pendency of any proceedings before a Tribunal, no employer shall alter to the prejudice of the workmen concerned in the said dispute, the conditions of service applicable to them, immediately before the commencement of the said proceedings, save with the expressed permission in writing of the Tribunal. Section 33 has been modified from time to time and its scope has been finally limited by the amendment made by Act 36 of 1956. The expression "the workmen concerned in such dispute" which occurred in the earlier section has not been modified and the construction which would place upon the said expression under the unamended section would govern the construction of the said expression even in the amended section. What does the expression "workmen concerned in such dispute" mean? The appellant contends that the main dispute was in regard to the discharge of 7 apprentices employed by the appellant, and it is only the said 7 apprentices who were concerned in the said dispute. The respondent was not concerned in the said dispute, and so the termination of his services cannot attract the provisions of section 33 (1)(a). Prima facie the argument that "workmen concerned in such dispute" should be limited to the workmen directly or actually concerned in such dispute appears plausible, but if the scheme of the Act is examined,.the effect of its material and relevant provisions, this limited construction of the clause in question cannot be accepted. The Court, thus, held that while dealing with the said question, the essential condition for raising of any industrial dispute itself will have to be borne in mind and also the question whether any individual dispute can be raised by group of workmen acting on their own through their union. The Court held that the said expression cannot be limited to such workmen, who are directly concerned with the dispute, but it would include "all workman on whose behalf the dispute has been raised as well as those who would be bound by the award which may be made in that dispute."It is necessary, at this stage, to refer to the brief facts of this case before the Apex Court wherein the appellant M/s. New India Motors Private Ltd., was directed to reinstate its former employee Mr. K.T. Morris to its original post as field service representative and to pay him his back wages from the date of his dismissal till the date of his reinstatement. The respondent was working with a firm in Calcutta prior to joining the appellant. He joined service in the month of May,1954 as Works Manager and continued till February, 1955, when he was given the assignment of the appellant's firm field service organiser with effect from March 1, 1955. A letter of appointment given to him on 28.2.1955 set forth the terms and conditions of his new assignment. Several complaints were received by the Management. It called for an explanation from the respondent. The respondent's services came to be terminated on the ground that he had decided to abolish the post of field service representative. The order gave rise to complaint under section 33A of the I.D. Act because at the time when his services were terminated, an industrial dispute was pending between the appellant and other employees and respondent was one of the workmen concerned in the said industrial dispute. The employees were working with the appellant as apprentices. They had alleged that their termination of service was improper and illegal and that was referred to the Industrial Tribunal for its adjudication.7. The Apex Court in the case of Ramji Singh (supra), was again controverted with the very question where Ramji Singh was in service of the appellant for over.10 years and he was dismissed from service. He made an application under section 33A of the I.D. Act alleging that the order of dismissal was in contravention of the provisions of section 33(2) of the Act and even otherwise was improper and illegal, both his contentions were upheld by the Tribunal and he was directed to be reinstated within a stipulated time period. The Apex Court held that even if broader construction of section 33(2) of the I. D. Act is adopted, it is necessary to enquire what was the subject matter of Reference No.60 of the 1959. The respondent's case set out in this application appears to be that, because there was Reference No.60 of 1959 pending between the appellant and some of its employees, section 33(2) applied, but, unless it is known as to what was the nature of the dispute pending in the said reference, it would plainly be impossible to decide whether the respondent is a workman concerned within the meaning of section 33(2). Therefore, the Tribunal, according to the Apex Court, was clearly in error in holding that the broad construction of section 33(2) automatically led to the conclusion that the respondent was the workman concerned and could, therefore, claim the protection of section 33(2). It was clarified by the company before the Apex Court that the dispute in Reference No.60 of 1959 was on behalf of the chaprasis and watchmen of Jamadoba and Digwadih Collieries for the respondent is a clerk, Grade III and it urged that he could not be said to be a workman concerned with this dispute. Resultantly, the appeal was allowed setting aside the order of the Tribunal. It is thus clear from this decision that before the Tribunal decides that person is workman concerned with the dispute which is pending in terms of the Reference, it is required to decide the nature of dispute pending in the said Reference and also as per the decision of the K.T. Morris (supra), the person concerned would be bound by the award which may be made in the dispute.8. This Court noticed from the award which has been challenged that the Tribunal has extensively examined the Reference (I.T.) No.14 of 1991 which was pending and on account of such pendency, a complaint had been made under section 33A of the I.D. Act. The Tribunal also examined the contention of the present petitioner that because he was one of the labourers of the Union, without any departmental proceedings, his services came to be terminated without availing any opportunity to him. The Court, after extensive details, concluded that the petitioner is not concerned with the Reference (I.T.) No.14 of 1991, which is in relation to driver Mr. N.K. Shaikh and Class-IV employees Mr. Rakesh C. Dudhwala and Mr. Surendra V. Purohit. Section 33A provides for special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings where an employer contravenes the provisions of section 33 during the pendency of proceedings before a conciliation officer, Board, an arbitrator, Labour Court, Tribunal or National Tribunal, any employee aggrieved by such contravention, who may make an complaint in writing. If one refers to section 33(1) (a), it provides that during the pendency of any proceedings before the Labour Court, no employer shall, in regard to the matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings or for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute save with the express permission in writing of the authority before which the proceeding is pending. Subsection (3) of section 33 of the I.D. Act provides that notwithstanding anything contained in subsection( 2), no employer shall, during the pendency of any such proceeding in respect of any industrial dispute, take any action against any protected workman concerned in such dispute by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings or by discharging or punishing, whether by dismissal or otherwise, such protected workman save with the express permission in writing of the authority before which the proceeding is pending. This subsection also explains that for the purpose of this subsection, a "protected workman" in relation to an establishment, means a workman who, being a member of the executive or other office bearer of a registered trade union connected with the establishment, is recognised as such in accordance with rules made in this behalf.9. If one looks at these provisions and also the decision of the Apex Court, which has been discussed herein above, whether the petitioner should be said to be a person who is concerned with the dispute which was pending and as to whether the outcome would have bound the petitioner as the requirement would be that the nature of dispute which was pending should bind the workmen on whose behalf the dispute has been raised. Reference (I.T.) No.14 of 1991 was pending for adjudication and none of the criterion above, in the opinion of this Court, would be applicable in the case of the present petitioner. Although he was one of the members of the Union, the dispute, which was pending was of the another Union and that could not be given an undue importance. It is nowhere emerging on the record that any action was taken against any of the office bearers. Even assuming that he was the only one, who was perceived to be against the interest of the management, then also, the question was as to whether the statement of claim made by those who were in the completely different cadre seeking permanency, would have any bearing on the employment of the present petitioner. The answer comes in negation. It was not possible that he would not have been permanent for all these years and even if he was not permanent, outcome of the Reference would have not benefited him for he being in a completely different cadre. Therefore, considering the nature of dispute and also considering all other circumstances, it cannot be said that he would have been bound by such outcome. The Tribunal, therefore, had been justified in holding that he was not the employee, who was concerned with the pending Reference (I.T.) No.14 of 1991, which eventually had resulted into parties settling the same and the Union withdrawing the said matter.10. This Court is convinced that he was permanent because he has been given benefits of leave encashment, gratuity, provident funds etc., which would not have been there had he not been permanent. Additionally, it had been emphatically argued by learned advocate Mr. Desai for the petitioner that there had been no examination of merit of this matter and he had been thrown out unceremoniously. In answer to that, it is urged by learned advocate Mr. Patel for the respondent that when his application under section 33A was not maintainable, there was no requirement of the Court to go into the merit part of it in the pending matter of 1991, which had been taken up by the Management in the year 1997. In absence of any conclusion when his application under section 33A has not been held maintainable, no further necessity would be there for the adjudicating authority to enter into the realm of further dispute.11. This Court is not concerned with the same nor on interim aspect. The complaint had not been entertained only on the ground of pendency of reference. No error is found in the order impugned and the petition stands dismissed. Rule is discharged.Petition dismissed.
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