Gujarat High Court Case Information System
Print
SCA/805/2011 10/ 10 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 805 of 2011
=========================================================
DIVISIONAL
CONTROLLER - Petitioner(s)
Versus
RAVIKUMAR
BHALABHAI PARMAR - Respondent(s)
=========================================================
Appearance
:
MR
HARDIK C RAWAL for
Petitioner(s) : 1,
NOTICE SERVED for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 16/03/2011
ORAL
ORDER
Heard
learned advocate Mr. HC Rawal on behalf of petitioner Corporation.
The
petitioner Corporation has challenged award passed by Industrial
Tribunal, Ahmedabad in complaint IT no. 4/2006 in reference IT no.
123/2003 dated 23/7/2010.
Learned
advocate Mr. Raval appearing for petitioner Corporation raised
contention that respondent workman was casual workman and his
appointment was not made under Statutory Rules and Regulation of
Corporation. Therefore, he can not consider to be a workman covered
by definition of workman under section 2(S) of Industrial Disputes
Act, 1947. The respondent workman was given work of arranging
tickets bundles on temporary basis as casual workman. But work
started decreasing and was being done by modern techniques. So work
given to respondent workman was stopped and wages for days worked by
respondent were paid to respondent. Therefore, he submitted that
industrial Tribunal has committed gross error in coming to
conclusion that petitioner Corporation has violated section 33(1)(a)
of Industrial Disputes Act, 1947 while terminating service of
respondent on 16/8/2005.
He
also raised contention that Industrial Tribunal has committed gross
error in entertaining complaint under section 33(A) of Industrial
Disputes, Act 1947 because Corporation has not committed any breach
of section 33(1)(a) or section 33 of Industrial Disputes Act, 1947.
He submitted that during pendency of reference in which dispute
raised, respondent was not concerned workman and termination is not
connected with pending dispute. Therefore, he submitted that
Industrial Tribunal has committed gross error in granting
reinstatement of respondent workman as casual workman in
Corporation.
He
also submitted that Industrial Tribunal, Ahmedabad has also
committed gross error in setting aside termination order passed by
Corporation against respondent.
I
have considered submission made by learned advocate Mr. Raval and I
have also perused award passed by Industrial Tribunal, Ahmedabad in
complaint IT no. 4/2006. The complaint was filed by workman under
section 33 (A) of Industrial Disputes Act, 1947. According to
workman, he was working as casual workman in Jamnagar Division
office in tickets section w.e.f. 1/11/1999. The respondent workman
was arranging different type of blocks in proper manner and as per
instructions given by cashier of booking section. In each month,
there were twenty four days continuous working and considering six
day i.e. Saturday and Sunday in all thirty days continuous working
are there. The wages has been paid to workman on vouchers.
Accordingly for presence, certificate has been issued by Corporation
in favour of respondent workman. The case of respondent workman is
that he has completed 180 days continuous service. Therefore, he
entitled benefit of time scale. He has completed 240 days
continuous service and also completed more than five years service.
Therefore, on the basis of statement of working days workman is
entitled to become permanent employee of Corporation. The
representation was made to Divisional Controller, Jamnagar which
resulted into termination of workman on 16/8/2005. According to
workman, he was doing work on computer and was also sent for
training in Bhuj Division on 18/1/2001. The administrative work has
been carried out by him and there was an industrial dispute pending
before Industrial Tribunal being reference IT no. 123/2003 in
respect to various demand raised by Union. Therefore, during
pendency of such reference, without prior permission, termination of
workman is amounts to breach of section 33 of Industrial Disputes
Act, 1947.
Therefore,
complaint was filed by workman. The petitioner Corporation has
filed reply vide exh 17 raising contention that in pending reference
being no. 123/2003, respondent has no connection at all with dispute
and section 33 is not violated by Corporation. The workman was
working as casual employee, therefore, complaint under section 33 A
of Industrial Dispute Act, 1947 is not maintainable. The complainant
has produced certain documents exh 9 office order of petitioner
Corporation, exh 10 presence of respondent workman for March 2004,
exh 11 presence of April 2004, exh 12 presence of March 2005, exh 13
letter of Senior Accountant to increase working hours of respondent
workman, exh 14 letter to sent respondent workman for training on
computer, exh 15 payment which was made to complainant by voucher
and exh 22 total working days and payment which has been made
against it as well as copy of voucher are also produced on record by
Corporation from page 1 to 244.
Thereafter,
matter has been heard by Industrial Tribunal. On the basis of
record, Industrial Tribunal has come to conclusion that service of
respondent workman was terminated on 16/8/2005 without following due
process of law and though industrial dispute was pending no prior
permission has been obtained by Corporation. Therefore, it has been
held that section 33 of Industrial Disputes Act, 1947 has been
violated by Corporation and respondent workman is covered by
definition of workman under section 2(S) of Industrial Disputes Act,
1947. The workman has completed more than 240 days continuous
service from date of joining 1/11/1999 to 16/8/2005. The issues
have been framed by Industrial Tribunal, Ahmedabad in para 6. The
Industrial Tribunal has considered decision of Apex Court in case of
The Bhavnagar Municipality Vs. Alibhai Karimbhai
& Ors reported in AIR 1977 SC 1229. The relevant
discussion made in para 12 and 13 are quoted as under:
“12. Before
we proceed further we should direct our attention to the subject
matter of the industrial dispute pending before the Tribunal. It
is sufficient to take note of the principal item of the dispute,
namely, the demand of the respondents for conversion of the
temporary status of their employment into permanent. To
recapitulate briefly the appellant employed daily rated workers
to do the work of boring and hand pumps in its Water Works
Section. These workers have been in employment for over a
year. They claimed permanency in their employment on their putting
in more than 90 days’ service. They also demanded two pairs of
uniform every year, cycle allowance at the rate of Rs. 10/- per
month, Provident Fund benefit and National Holidays and other
holidays allowed to the other workers. While this particular
dispute was pending before the Tribunal, the appellant decided to
entrust the work, which had till then been performed by these
workers in the Water Works Section, to a contractor. On the
employment of the contractor by the Municipality for the self-same
work, the services of the respondents became unnecessary and the
appellant passed the orders of retrenchment. It is, therefore,
clear that by retrenchment of the respondents even the temporary
employment of the workers ceased while their dispute before the
Tribunal was pending in order to improve that temporary and
insecure status.
13.
Retrenchment may not, ordinarily, under all circumstances, amount
to alteration of the conditions of service. For instance, when a
wage dispute is pending before a Tribunal and on account of the
abolition of a particular department the workers therein have to be
retrenched by the employer,such a retrenchment cannot amount to
alteration of the conditions of service. In this particular case,
however, the subject matter: being directly connected with the
conversion of the temporary employment into permanent, tampering
with the status quo ante of these workers is a clear alteration
of the conditions of their service. They were entitled during the
pendency of the proceeding before the Tribunal to continue as
temporary employees hoping for a better dispensation in the pending
adjudication. And if the appellant wanted to effect a change of
their system in getting the work done through a contractor instead
of by these temporary workers, it was incumbent upon the appellant
to obtain prior permission of the Tribunal to change the
conditions of their employment leading to retrenchment of their
services. The alteration of the method of work culminating in
termination of the services by way of retrenchment in this ease has
a direct impact on the adjudication proceeding. The alteration
effected in the temporary employment of the respondents which was
their condition of service immediately before the commencement of
the proceeding before the Tribunal, is in regard to a matter
connected with the pending industrial dispute.”
In
view of aforesaid decision of Apex Court and considering being an
undisputed fact that service of respondent workman was orally
terminated on 16/8/2005. At that occasion, general demand for
better condition of service in respect to workman those who were
working in Corporation was pending being reference IT no. 123/2003
and this respondent workman is considered to be concerned workman in
pending dispute and it also considered to be affected workman.
During pendency of that reference, service of respondent was
terminated without giving any opportunity to workman. The respondent
workman has completed more than seven years continuous service as
casual employee in booking section for arranging different kind of
tickets blocks as per instructions given by cashier from booking
section. Therefore, termination of respondent workman by
Corporation during pendency of reference without prior permission
itself is violated section 33 of Industrial Disputes Act, 1947. In
case of breach of section 33 committed by Corporation then section
33(A) complaint can be file by concerned workman before Industrial
Tribunal which may be considered to be a reference referred by
Appropriate Government under section 10 of Industrial Disputes Act,
1947. Therefore, after considering entire matter this being an
undisputed fact is that workman was employed by Corporation as
casual workman w.e.f. 1/11/1999 and remained continuous in service
upto 16/8/2005 date of termination and in between workman was
remained continuous in service and has completed 240 days continuous
service in each year. Even though, section 25 F has not been
followed by Corporation at the time of terminating service of
respondent workman. The respondent workman was connected, concerned
and affected workman in pending dispute 123/2003.
Therefore,
according to my opinion respondent workman is covered by definition
of workman under section 2(S) of Industrial Disputes Act, 1947 and
industrial dispute no. 123/2003 was pending where general demand has
been raised by Union for better condition of service of concerned
workman wherein this respondent is also concerned workman. In such
circumstances, retrenchment of present respondent without prior
permission is amounts to breach of section 33 of Industrial Disputes
Act, 1947. The decision of Apex Court in case of Bhavnagar
Municipality is squarely covered the issue. Therefore, Industrial
Dispute has rightly examined matter and come to conclusion that
section 33 has been violated. Therefore, complaint under section 33
A is maintainable. The Industrial Tribunal has passed an order
which considered to be balanced order because no back wages has been
awarded in favour of workman by Industrial Tribunal, Ahmedabad and
simply reinstatement to original post has been granted in favour of
respondent workman. For that, according to my opinion, Industrial
Tribunal, Ahmedabad has not committed any error which would require
interference by this Court while exercising power under Art. 227 of
Constitution of India.
I
have considered reasoning given by Industrial Tribunal, Ahmedabad
and matter has been discussed at length by Industrial Tribunal,
Ahmedabad. On the basis of documents produced by Corporation most
of facts are remained undisputed which included date of joining and
date of termination. The industrial dispute was pending being
reference no. 123/2003 for general demand raised by Union for better
condition of service in which respondent workman was concerned
workman. Even though, while terminating/retrenching respondent no
prior permission was obtained. Therefore, complaint under section 33
A is maintainable and otherwise also section 25 F is not also
followed by Corporation though workman has completed continuous
service of 240 days in each year from 1/11/1999 to 16/8/2005.
Therefore, order of termination is also violated section 25 F of
Industrial Disputes Act, 1947. The order of retrenchment is ab
initio void and workman is deemed to be in service as decided by
Apex Court in case of Mohan Lal Vs. The Management of M/s
Bharat Electronics, Ltd., reported in AIR 1981 SC 1253.
In light of this back ground, no interference would require by this
Court under Article 227 of Constitution of India.
The
contention raised by learned advocate Mr. Raval can not be accepted,
therefore, rejected. Hence, there is no substance in present
petition. Accordingly, present petition is dismissed.
(H.K.RATHOD,
J)
asma
Top