w w w . L a w y e r S e r v i c e s . i n



Automotive Stamping And Assambly Ltd. v/s Akhil Gujarat General Mazdoor Sangh


Company & Directors' Information:- J J AUTOMOTIVE LTD [Active] CIN = L34103WB1981PLC033996

Company & Directors' Information:- S C L AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U35900TN2009PTC072343

Company & Directors' Information:- P P AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U35999HR2009PTC039808

Company & Directors' Information:- AUTOMOTIVE CORPN OF INDIA LTD [Strike Off] CIN = U15422MH1974PLC017377

Company & Directors' Information:- G. H. AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U34300DL2007PTC161956

Company & Directors' Information:- C V AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U63011DL2009PTC189646

Company & Directors' Information:- K J AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U50401PN2013PTC146058

Company & Directors' Information:- D M AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U29253HR2012PTC045797

Company & Directors' Information:- L K AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U34300GJ2011PTC066118

Company & Directors' Information:- AKHIL INDIA PRIVATE LIMITED [Active] CIN = U51109JK2000PTC002046

Company & Directors' Information:- AKHIL CORPORATION PRIVATE LIMITED [Under Process of Striking Off] CIN = U74900TG2015PTC098902

Company & Directors' Information:- J N AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U50102AS2014PTC011838

Company & Directors' Information:- A S A AUTOMOTIVE PVT LTD [Strike Off] CIN = U51109WB1991PTC052174

Company & Directors' Information:- D R P AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U51101DL2014PTC267341

Company & Directors' Information:- D S AUTOMOTIVE PRIVATE LIMITED [Strike Off] CIN = U50102MH2011PTC215763

Company & Directors' Information:- V. E AUTOMOTIVE INDIA PRIVATE LIMITED [Active] CIN = U34200UP2012PTC054101

Company & Directors' Information:- K. S. AUTOMOTIVE PRIVATE LIMITED [Active] CIN = U51502DL2007PTC163634

Company & Directors' Information:- J K AUTOMOTIVE PRIVATE LIMITED [Converted to LLP] CIN = U34300DL2011PTC218392

    Special Civil Application Nos. 10682 of 2015, 13511 of 2015 & 13512 of 2015

    Decided On, 06 November 2015

    At, High Court of Gujarat At Ahmedabad

    By, THE HONOURABLE MR. JUSTICE PARESH UPADHYAY

    For the Petitioner: G.M. Joshi, Advocate. For the Respondent: G.M. Joshi, Paritosh Calla, K.M. Patel, Sr. Advocate with Varun K. Patel, A.K. Clerk, Paritosh Calla, Advocates.



Judgment Text

1. Challenge in these three petitions is made by the principal employer and two contractors, to the award passed by the Industrial Tribunal (No.1), Vadodara dated 13.03.2015 in Reference (IT) No.13 of 2008. By the impugned award, the Tribunal has directed these three parties to reinstate the workmen connected with the dispute, who are 182 in numbers, in service. The Tribunal has given the said direction subject to final outcome of Reference (IT) No.127 of 2007, the terms of Reference of which is referred hereinafter. The Tribunal has further directed that in the event these two contractors fail to implement this order, the principal employer will do so. It is this award, which is challenged by the principal employer and the contractors.

2. Special Civil Application No.10682 of 2015 is filed by the principal employer. Special Civil Application Nos. 13511 of 2015 and 13512 of 2015 are filed by the two contractors. Of these two contractors, the petitioner of Special Civil Application No.13512 of 2015 i.e. Riya Enterprises does have contract with the principal employer at present for some work. The contract of the petitioner of the Special Civil Application No.13511 of 2015 i.e. Krupalu Enterprises is not in force with the principal employer at present.

3. Rule.

4. Mr.K.M. Patel, learned senior advocate for the principal employer and Mr.G.M.Joshi, learned advocate for both the contractors have addressed the Court at length. On the other hand, Mr.A.K.Clerk, learned advocate for the contesting respondent - Union has also addressed the Court at length. Learned advocates for the respective parties have taken this Court through the material on record.

5. Mr.K.M.Patel, learned senior advocate for the principal employer has made the following submission.

5.1. It is submitted that, the Tribunal has committed error in giving directions to all the three parties i.e. the principal employer and two contractors to reinstate the workmen. It is vehemently submitted that without adjudicating the dispute of Reference (IT) No.127 of 2007, no direction could have been given to the principal employer. It is submitted that the Tribunal has committed error of granting final relief of Reference (IT) No.127 of 2007 against the principal employer, in Reference (IT) No.13 of 2008, without adjudicating Reference (IT) No.127 of 2007. It is submitted that the impugned award therefore needs to be quashed and set aside qua the principal employer.

5.2 Learned senior advocate for the principal employer has drawn the attention of this Court to various grounds taken in the petition by referring to para:3(A) to 3(W), to contend as to how, even in Reference (IT) No.127 of 2007 such a direction could not have been given, against the principal employer. Those arguments are not reflected in detail in this order, for the reasons recorded in para:8.3 here below. It is noted that, learned senior advocate has also relied on various authorities in support of these submissions, however since those arguments are not to be dealt with by this Court, for the reasons recorded in para:8.3, dealing with those authorities would also be academic. The authorities relied on by learned senior advocate for the principal employer are as under.

(i) Municipal Corporation of Greater Mumbai v. K.V. Shramik Sangh and others reported in (2002) 4 SCC 609

(ii) International Airport Authority of India v. International Air Cargo Workers' Union and another reported in (2009) 13 SCC 374.

(iii) General Manager (OSD) Bengal, Nagpur Cotton Mills, Rajnandgaon v. Bharat Lal and another reported in (2011) 1 SCC 635.

(iv) Bhel v. Kamal Kar Matar and others reported in (2002) 9 SCC 661.

(v) Oil and Natural Gas Corporation Ltd v. Gujarat Mazdoor Sabha and others reported in 2009 (1) GLR 361.

(vi) Gujarat Mazdoor Panchayat v. Conciliation Officer and others reported in 2002 (2) GLH 253.

(vii) Gujarat Mazdoor Sabha v. Indian Oil Corporation reported in 2005 (3) GLH 85.

(viii) Oshiar Prasad and others v. The employers in Relation to Management of Sudamdih Coal Washery of M/s BCCL, Dhanbad, Jharkhand reported in 2015 (2) Scale 153.

6. Mr. G.M. Joshi, learned advocate for the petitioner contractors has adopted the submissions made on behalf of learned senior advocate for the principal employer. Independent of that he has further submitted that this was not the case of termination of service of the workmen, as alleged by them, but it is the workmen themselves who were reluctant to work at the place where the contractors had the work contracts. Learned advocate has taken this Court through the material on record to contend that the contractors were and are ready and willing to offer work to the workmen, but it can not be in the establishment where the contractor does not have work or has less work. It is submitted that the petitioner of Special Civil Application No.13512 of 2015 i.e. Riya Enterprises does have contract with the principal employer at present, for some work, and some of the workmen can be accommodated there. It is submitted that so far the petitioner of the Special Civil Application No.13511 of 2015 i.e. Krupalu Enterprises is concerned, he does not have any contract in force, with the principal employer at present. It is however submitted on behalf of both the contractors that the workmen shall be offered work in the establishments, where these contractors have got work contract. It is submitted that in the event any of these two contractors is not in a position to offer work to any of the workmen, the said discontinuance shall be in accordance with law. It is submitted that the impugned award be quashed and set aside.

7. Mr. A.K. Clerk, learned advocate for the contesting Union has made the following submissions.

7.1. It is submitted that, had the relief not been granted by the Tribunal, as it is done by it, the Reference (IT) No.127 of 2007 would become infructuous. It is submitted that, the Tribunal has not committed any error in passing the impugned award and in giving directions to all the three parties i.e. the principal employer and two contractors. It is submitted that, this Court may not interfere in the impugned award.

7.2. It is further submitted that the work with the principal employer has not reduced and therefore that contention is rightly not accepted by the Tribunal and therefore the direction against the principal employer as well is justified in the present case and it be not interfered with. Learned advocate has taken this Court through the material on record to contend that the work which the workmen in question were doing is such, which could not have been outsourced by the principal employer on contract basis. Reliance is also placed on the decision of this Court in the case of Gujarat Energy Transmission Corporation Ltd. v. Labour Court, Anand and others, recorded on Special Civil Application No.3568 of 2013 dated 01.07.2013.

7.3. It is submitted that no interference be made by this Court and all the three petitions be dismissed.

8. Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds as under.

8.1.1. At the outset it needs to be noted that, the impugned order is passed in Reference (IT) No.13 of 2008, which is subject to final outcome of Reference (IT) No.127 of 2007. The terms of these two References are as under.

8.1.2. The principal demand in Reference (IT) No.127 of 2007 is as under:-

" Whether the workmen of the so called contractors should be treated as the workmen of the company from the date of entry into service and they should be paid basic pay, dearness allowance and other benefits as stated below, as the contract system prevailing in the establishment in all work except security contract, is bogus, sham and only a paper arrangement (sham, bogus and camouflagious contract system)."

8.1.3 The terms of the subsequent Reference (IT) No.13 of 2008, on which the impugned award is passed, is as under.

" Whether 182 workmen in the enclosed Annexure-A should be reinstated in service with continuity of service, full back wages and all other available benefits."

8.2. On conjoint reading of the above terms of references, this Court finds that the Tribunal has committed error in giving directions to all the three parties i.e. the principal employer and two contractors to reinstate the workmen. These directions could either be against the principal employer or against the contractors. Without adjudicating the dispute of Reference (IT) No.127 of 2007, no direction could have been given to the principal employer. The Tribunal has thus committed error in granting final relief of Reference (IT) No.127 of 2007 against the principal employer, in Reference (IT) No.13 of 2008, without adjudicating Reference (IT) No.127 of 2007. The impugned award therefore needs to be quashed and set aside qua the principal employer.

8.3 Though learned senior advocate for the principal employer has made various submissions on merits, as to how even in Reference (IT) No.127 of 2007 such a direction could not have been given against the principal employer, those submissions [grounds 3(A) to 3(W) of the petition] are not dealt with by this Court in this petition, since it may prejudice the case of either of the parties in Reference (IT) No.127 of 2007, which is yet to be adjudicated by the Tribunal. Suffice it to hold that, the Tribunal, at least in Reference (IT) No.13 of 2008 could not have given direction to the principal employer to reinstate the workmen.

9.1. So far the argument on behalf of the respondent Union that, had the relief not been granted by the Tribunal, as it is done by it, the Reference (IT) No.127 of 2007 would become infructuous, is concerned, it is double edged award. The second side of this argument is, as to how the final relief, which could have been granted against the principal employer in Reference (IT) No.127 of 2007, is granted by the Tribunal in Reference (IT) No.13 of 2008, without adjudicating Reference (IT) No.127 of 2007. The Reference (IT) No.127 of 2007 can not be made infructuous as contended on behalf of the Union, but equally true it is that it could not have been allowed also, without adjudication thereof. This argument therefore is rejected.

9.2. So far the reliance placed on behalf of the Union on the decision of this Court in Special Civil Application No.3568 of 2013 is concerned, the same would not be of any help to it, since the fact situation in the said case was altogether different. The finding of this Court in the said decision inter alia reads as under.

"Having heard learned advocates for the respective parties and having gone through the material on record, what is undisputed is that the workmen are in the employment of petitioner company for 15 to 18 years, the details of which are given in the schedule to the Reference. Mr.Joshi, learned advocate for the petitioner company, has not been able to dispute that though contractors have changed from time to time, the engagement of the workmen has remained as it is with the petitioner company. Reference can also be made to paragraphs 5 and 6 of the application dated 13.03.2013 given on behalf of the workmen to the Labour Court, which also makes this fact clear. In this factual background that the workers have remained in employment of the petitioner company for 15 to 18 years and over all these years, only contracts have changed but the Association of the workmen has remained as it is with the petitioner company, prima facie, there is substantial force in the arguments of the learned advocate for the respondent workmen that contract is merely a paper arrangement. Under these circumstances, when Labour Court has thought it proper to grant protection under Section 33A of the Industrial Disputes Act, 1947, I see no infirmity in the impugned order and does not call for any interference by this Court."

In the present case, the above noted satisfaction is yet to be arrived at, which can not be done by this Court since that is to be first done by the Tribunal, that too in Reference (IT) No.127 of 2007.

9.3. So far the argument of the Union that the work with the principal employer has not reduced and further that the work which the workmen in question were doing is such, which could not have been outsourced by the principal employer on contract basis, is concerned, the same also would not help the Union in the present case since that question needs to be gone into in Reference (IT) No.127 of 2007. Even if the say of the workmen is right in this regard, the same is the subject matter of Reference (IT) No.127 of 2007 and not Reference (IT) No.13 of 2008, in which the impugned award is passed.

9.4 For these reasons, the arguments made on behalf of the respondent Union are rejected.

10.1 While interfering in the impugned award of the Tribunal, this Court is conscious of the fact that the interest of the workmen also need to be protected. In this regard it is noted that the contractors have not disowned these workmen. There is ample material on record to arrive at the satisfaction to the effect that the contractors are ready and willing to offer work to these workmen, in the establishments and at the places where they have work, however it is the reluctance of the workmen to go to any other establishment. Under these circumstances, no direction is required to be given to these contractors to reinstate the workmen, since it is yet to be adjudicated as to whether, this is the case of termination of service or not joining the duty by the workmen at the work place indicated by the contractors. Without adjudicating this issue, the Tribunal has committed error in terming the discontinuance of service of these workmen as illegal termination by the contractors. The matter therefore needs to be remanded back to the Tribunal, to go into this aspect first, in Reference (IT) No.13 of 2008. It is noted that, the communication from the Government Labour Officer Vadodara dated 06.07.2007 addressed to the Union, which is on record, completely tilts the balance against the Union, so far the readiness of the contractors to give employment to these workmen is concerned. If the contents of the said communication is taken into consideration, the controversy is narrowed down from 182 workmen to 19 workmen. The Tribunal has not deliberated at all in this regard. Qua those 19 workmen, the Tribunal could have examined the matter in detail and after recording satisfaction in that regard, appropriate direction could have been given to the concerned contractor. The Tribunal has not done any such exercise. This is the additional ground to interfere in the impugned award.

10.2 The evidence in the form of the cross examination of the workmen, which is on record, also fortifies the say of the contractors that it is the workmen who were not ready to work in the establishment other than the principal employer in the present case. The Tribunal has erred in ignoring the said material evidence.

11. Considering the totality and the facts and circumstances as noted above, this Court finds that the impugned award is unsustainable in law and on facts, and the same needs to be quashed and set aside.

12. For the reasons recorded above, the following order is passed.

12.1 The petition filed by the principal

Please Login To View The Full Judgment!

employer is allowed. 12.2 The petitions filed by the contractors are partly allowed. 12.3 The impugned award passed by the Tribunal is quashed and set aside. 12.4 The matter is remitted back to the Tribunal with the direction that the Tribunal shall first adjudicate the relationship of the workmen connected with the dispute in question i.e. Reference (IT) No. 13 of 2008, with the principal employer. For this purpose, the adjudication of Reference (IT) No.127 of 2007 is required. The Tribunal shall first do so. 12.5 Till the above direction is carried out by the Tribunal, the interest of the workmen also need to be protected. The petitioner contractors are therefore restrained from discontinuing the service of these workmen, except in accordance with law. While continuing this protection, the Tribunal shall first adjudicate, in Reference (IT) No.13 of 2008, as to whether the discontinuance of service of these workmen by the contractors, was illegal termination as alleged by the workmen, or was the case of not joining the duty by the workmen, in the establishment(s) where work was offered by the contractors to them. While doing so, the Tribunal shall take into consideration the communication from the Government Labour Officer Vadodara dated 06.07.2007 addressed to the Union, so also the evidence of the workmen, which are on record. 12.6 Special Civil Application No.10682 of 2015 filed by the principal employer is allowed. Rule is made absolute. No order as to costs. 12.7 Special Civil Application Nos. 13511 of 2015 and 13512 of 2015, which are filed by the two contractors are partly allowed. Rule made absolute to the above extent. No order as to costs.
O R