Gujarat High Court Case Information System
Print
SCA/1426/2011 7/ 7 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 1426 of 2011
=========================================================
NEW
GUJARAT MAZDOOR MANCH - Petitioner(s)
Versus
STATE
OF GUJARAT THROUGH LABOUR COMMISSIONER & 2 - Respondent(s)
=========================================================
Appearance
:
MR
UT MISHRA for
Petitioner(s) : 1,
MR AL SHARMA, AGP for Respondent(s) : 1,
MR
YOGEN N PANDYA for Respondent(s) : 2,
NOTICE SERVED for
Respondent(s) : 3,
RULE NOT RECD BACK for Respondent(s) :
3,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 02/05/2011
ORAL
ORDER
Heard
learned advocates appearing on behalf of respective parties. No
appearance is filed by respondent No.3 though notice is served to
respondent No.3.
On
19th April, 2010, following order is passed by this Court
:
“Heard
learned advocates appearing on behalf of respective parties. Notice
issued by this Court to respondent No.3, but, no appearance is filed.
Considering
question raised and involved in present petition, this matter
requires detailed examination by this Court, hence, RULE
returnable
on 2 nd
May, 2011.
Learned
AGP Ms. Bhatt waives service of notice of rule on behalf of
respondent No.1.
Learned
advocate Mr. Yogen Pandya waives service of notice of rule on behalf
of respondent No.2.”
Today,
with consent of all learned advocates, matter is taken up for final
hearing.
In
present petition, petitioner has challenged order passed by Labour
Commissioner, State of Gujarat, Gandhinagar dated 27th
January, 2010, wherein, Labour Commissioner has come to conclusion
while exercising powers under Section 12(5) of Industrial Disputes
Act, 1947 that dispute which has been raised by petitioner Union is
not referred for adjudication to concerned Industrial Tribunal,
because, that workman is required to be made permanent or not, that
fact is to be considered individually on merits by employer.
Therefore, industrial dispute raised by petitioner Union is not
referred for adjudication. The affidavit in reply is filed by
respondent No.1 – Harshadbhai Ramniklal Shah, Deputy Labour
Commissioner. The relevant averments made in para 4 to 8 are quoted
as under :
“4. I
humbly say and submit that the present petitioner has put forward
demand before the respondent No.2 company and respondent No.3,
contractor by the vide charter of demand dated 10.09.2009 were
concerning contract workers engaged by the respondent No.3
contractor.
5. I
say and submit that on examining the justification of demand at Page
14 & 15 it makes ample clear that the petitioner itself is not
clear about its demand whether it is for a worker engaged by
contractor/ contractors and they are seeking the relief for workers
or want to abolish the contract system in specific process of
contract.
6. It
is submitted that in above mentioned demands bearing I D Case No.90
of 2009 the failure report under Section 12(4) of the Industrial
Disputes Act, 1947 was submitted by Conciliation Officer, Anand to
the Respondent No.1. Labour Commissioner on 16.09.2010. On the basis
of the contents of the conciliation case and confidential report of
the conciliation officer, Anand, the respondent No.1 authority
empowered vide Section 12(5) of the Industrial Disputes Act, 1947 was
not satisfied and came to conclusion that there was no case for
reference and refused to make reference to the Industrial Tribunal
for adjudication vide order dated 27.01.2010.
7. It
is submitted that the order dated 27.01.2010 passed by the Respondent
No.1 is reasoning one and self explanatory. The nature of demands is
not specific, names of the workers, the date of joining particular
work carried out by them and under which contractor are they were
working for, is not mentioned. Without specific details the dispute
cannot be adjudicated on merits of the individual workman.
8. It
is submitted that unless the list of concerned contract workers for
which disputes is raised and the names of contractor by whom they
were employed along with mentioning process in which they were
engaged and carried out their functioning and also their dates of
joining submitted, their dispute cannot be adjudicated. The list of
contracts workers was not submitted by the petitioner Union during
conciliation proceedings. Hence the order dated 27.01.2010 is just
and reasonable.”
It
is necessary to note that industrial dispute raised by petitioner
Union, page 10 and 11, dated 10th September, 2009, where,
charter of demand has been raised against Manager – respondent
No.2 and Labour Contractor Mr. S.M. Pathan – respondent No.3 on
the ground that contract system which is going on with establishment
that is found to be sham, bogus and not genuine. It is merely a paper
arrangement made by employer and contractor and such labour contract
is an eye-wash, bogus. Therefore, employees those who are working
under contractor, are considered to be an employee of respondent No.2
– employer and they are entitled benefit of permanent workman
with all salary and other allowances.
The
second dispute is raised that from date of joining during aforesaid
period subsequently whatever less benefit has been paid to workman,
they should have to be reimbursed by 10% more to workman working with
contractor. In support of aforesaid dispute after intervention by
Conciliation Officer, Anand, statement of claim justification has
been filed by petitioner Union and thereafter, Conciliation Officer
in case No.90 of 2009 submitted failure report under Section 12(4) of
ID Act, 1947. The Labour Commissioner being an appropriate Government
has framed opinion of not referring dispute for adjudication. The
order dated 27th January, 2010 is absolutely suggests
non-application of mind by appropriate Government. The appropriate
Government has not considered dispute/ demand raised by Union and
also not considered justification submitted by Union. The original
demand which has been raised by Union was that whatever contract
system which has been going on with employer that has been sham,
bogus and not genuine, it is merely a paper arrangement between
employer and contractor. There is no reflection at all in order of
refusing reference dated 27th January, 2010. The
appropriate Government – respondent No.1 has not even gone
through failure report properly and without application of mind,
aforesaid decision has been taken under Section 12(5) of ID Act,
1947.
The
appropriate Government cannot decide merits of industrial dispute
raised by Union. The appropriate Government must have to consider one
aspect that industrial dispute raised by Union is in existence or
not, then, it must have to refer for adjudication. In this case,
there is a dispute raised by Union that contract system is sham,
bogus and merely a paper arrangement, then, reason which has been
given for not referring dispute is altogether different than demand
raised by Union, therefore, it is a clear case of non-application of
mind by appropriate Government. When industrial dispute or demand
raised by Union, at that occasion, question of adjudication on merits
does not arise by appropriate Government. That view has been taken by
Apex court in case of Telco Convoy Drivers Mazdoor Sangh and
another v. State of Bihar and others
reported in AIR 1989 SC 1565
and another recent decision of Division Bench of this Court in case
of Thakor Nagjibhai Bhailal v. IPCL., Now
Amalgamated with Reliance Inds. Ltd. & Ors., reported
in 2011-I-CLR 182.
This Court has also considered similar aspect in case when demand
raised by Union that contract system is sham, bogus and merely a
paper arrangement, in that circumstances, industrial dispute must
have to be referred
for adjudication by appropriate Government in Special Civil
Application No.662 of 2011 dated 26th
April, 2011.
Therefore,
in light of these facts and also considering affidavit in reply filed
by Deputy Labour Commissioner, where also, exact demand which has
been raised by petitioner Union at page 10 and 11 has been totally
ignored by appropriate Government, order passed by appropriate
Government dated 27th
January, 2010 not to refer industrial dispute for adjudication is
hereby quashed and set aside with a direction to appropriate
Government – respondent No.1 to reconsider entire matter afresh
and consider demand notice given by Union as well as justification
given by Union in support of demand and also to consider defence
raised by employer as well as contractor and then to examine whether
in fact contract system which has been going on with employer is
sham, bogus and merely a paper arrangement or not and thereafter, to
take appropriate decision under Section 12(5) of Industrial Disputes
Act, 1947, after considering failure report submitted by Conciliation
Officer within a period of two months from date of receiving copy of
present order and communicate decision of reference to petitioner
Union immediately.
Accordingly,
rule is made absolute to aforesaid extent.
[H.K.
RATHOD, J.]
#Dave
Top