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SCA/7736/2000 6/ 6 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 7736 of 2000
For
Approval and Signature:
HONOURABLE
MR.JUSTICE M.R. SHAH
=========================================
1
Whether
Reporters of Local Papers may be allowed to see the judgment ?
2
To
be referred to the Reporter or not ?
3
Whether
their Lordships wish to see the fair copy of the judgment ?
4
Whether
this case involves a substantial question of law as to the
interpretation of the constitution of India, 1950 or any order
made thereunder ?
5
Whether
it is to be circulated to the civil judge ?
=========================================
HEMA
CHEMICALS INDUSTRIES - Petitioner(s)
Versus
RAMKAILAS
SAROJ - Respondent(s)
=========================================
Appearance :
MR
VIMAL M PATEL for
Petitioner(s) : 1,
MR RD RAVAL for Respondent(s) :
1,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE M.R. SHAH
Date
: 07/10/2010
ORAL
JUDGMENT
1. By
way of this petition under Articles 226 and 227 of the Constitution
of India the petitioner management has prayed for an appropriate
writ, order or direction quashing and setting aside the impugned
order dated 10/04/2000 passed below Exh. 7 by the Industrial
Tribunal, Vadodara in Permission Application No. 20/1999 in Reference
(I.T.) No. 108/1996 seeking approval to terminate the services of the
respondent as required under Section 33(3)(b) of the Industrial
Disputes Act.
2. As
during pendency of Reference (I.T.) No. 108/1996 service of the
respondent were sought to be terminated and in fact an order came to
be passed to terminate the service subject to the permission to be
obtained from the Industrial Tribunal, the petitioner submitted an
application under Section 33(3)(b) of the Industrial Disputes Act
seeking permission to terminate the service of the respondent and to
implement the order of dismissal dated 11/06/1999. It appears that
the petitioner wanted to withdraw Permission Application No. 20/1999
and, therefore, an application below Exh. 7 was submitted before
the Industrial Tribunal permitting the petitioner to withdraw the
Permission Application, which came to be rejected by the Industrial
Tribunal vide impugned order dated 10/04/2000 directing that the
Permission Application shall be decided on its own merits. Being
aggrieved and dissatisfied with the same the petitioner has preferred
the present Special Civil Application under Articles 226 and 227 of
the Constitution of India.
3. Shri
Vimal Patel, learned advocate appearing on behalf of the petitioner
has vehemently submitted that as such it is the right and prerogative
of the petitioner to withdraw the Permission Application at any time
subject to the risk of withdrawing the Permission Application and
the necessary consequences, which may follow on the basis of the
order of termination. It is further submitted that suppose the
Permission Application is not submitted at all and the service of the
respondent is terminated, in that case, necessary consequences of not
following the procedure as required under Section 33(3)(b) of the
Industrial Disputes Act may follow. It is submitted that merely
because the petitioner submitted an application under Section
33(3)(b) of the Industrial Disputes Act and subsequently the
petitioner wants withdraw the Permission Application the Industrial
Tribunal ought to have permitted the petitioner to withdraw the same.
4. Shri
Raval, learned advocate appearing on behalf of the respondent has
submitted that as the workman was entitled to subsistence allowance
from the date of Permission Application and/or during pendency of the
Permission Application the right is in their favour to receive
subsistence allowance and, therefore, it is requested not to permit
the petitioner to withdraw the Permission Application.
4.1. Shri
Raval, learned advocate appearing on behalf of the respondent has
relied upon the decision of the Hon’ble Supreme Court in the case of
JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD. Vs. RAM GOPAL SHARMA
AND ORS. reported in 2002-I-LLJ
834 and has submitted that as
held by the Hon’ble Supreme Court not making application under
Section 33(2)(b) for approval, the order of discharge or punishment,
by dismissal or otherwise, of workman during pendency of industrial
dispute proceedings, withdraws it are clear case of contravention of
statutory requirement and, therefore, it is submitted that even if
the petitioner is permitted to withdraw the permission application
under Section 33(2)(b) of
the Industrial Disputes Act the same would have effect of
contravening the statutory requirement.
5. Having
heard Shri Vimal Patel, learned advocate appearing on behalf of the
petitioner and considering the impugned order and considering the
facts and circumstances narrated hereinabove, it appears to the Court
that the Industrial Tribunal has materially erred in not permitting
the petitioner to withdraw the Permission Application submitted under
Section 33(3)(b) of the Industrial Disputes Act. Whatever
consequences shall follow on terminating the service of the
respondent during pendency of Reference (I.T.) No. 108/1996, which
may follow on non-compliance of Section 33 of the Industrial Disputes
Act, the petitioner is ready to face the consequences and the risk.
However, when the petitioner is ready to face such a risk and
consequences, the Industrial Tribunal ought to have permitted the
petitioner to withdraw the Permission Application. Take a case in
which an employer has not approached the Industrial Tribunal for
permission under Section 33(3)(b) of the Industrial Disputes Act and
terminates the services of the employee during pendency of the
Reference and/or dispute before the Industrial Tribunal and/or Labour
Court, in that case, such an action of termination during pendency of
the Reference can be challenged by the respondent-workman. In the
present case, merely because the petitioner submitted Permission
Application seeking permission to terminate the service of the
respondent during pendency of the Reference and when subsequently the
petitioner wants to withdraw the said Permission Application with
whatever risk that may follow in appropriate proceedings to be
initiated by the workman challenging his termination on the ground
that the same is in breach of Section 33 of the Industrial Disputes
Act and/or on the ground that the Tribunal ought not to have
permitted the petitioner to withdraw the Permission Application
and/or on the ground that the respondent might have some right of
subsistence allowance etc. on that ground the prayer of the
petitioner to withdraw the Permission Application cannot be
rejected. As stated hereinabove, what would have been the position
in case where the petitioner had not submitted Permission Application
at all and terminated the services of the workman during pendency of
the Reference.
6. Now
so far as the reliance placed upon the Hon’ble Supreme Court in the
case of JAIPUR ZILA SAHAKARI BHOOMI VIKAS BANK LTD. (Supra) is
concerned, as stated hereinabove, whatever be the consequences of
withdrawal of Permission Application the same shall follow and it is
the petitioner, who is taking the risk of such consequences. The
aforesaid decision of the Hon’ble Supreme Court can be relied upon
by the respondent at appropriate stage. However, the petitioner
cannot be restrained from withdrawing the Permission Application,
which it wants to withdraw unconditionally.
7. In
view of the above and for the reasons stated hereinabove, the present
petition succeeds and the impugned order passed by the Industrial
Tribunal, Vadodara below Exh. 7 dated 10/04/2000 in Permission
Application 20/1999 in Reference (I.T.) No. 108/1996 subject to the
consequences that may follow on terminating the service of the
respondent during pendency of the service, which may follow under
Section 33 of the Industrial Disputes Act and without prejudice to
the rights and contention of the workman challenging the order of
termination/action of the petitioner terminating the service of the
respondent during pendency of Reference (I.T.) No. 108/1996 is hereby
quashed and set aside. Rule is made absolute to the aforesaid
extent. No cost.
(M.R.
SHAH, J.)
siji
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