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MCA/829/2010 3/ 5 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
MISC.CIVIL
APPLICATION - FOR CONTEMPT No. 829 of 2010
=====================================================
RAJUBHAI
RATILAL PATEL, PRESIDENT, EMPLOYEES UNION OF - Applicant(s)
Versus
AHMEDABAD
TEXTILES INDUSTRY'S RESEARCH ASSOCIATION & 3 - Opponent(s)
=====================================================
Appearance :
Mr.J.T.Trivedi
for MR VIPUL A SHAH for Applicant(s) : 1,MR K R
MISHRA for Applicant(s) : 1,
Mr.Chudgar for NANAVATI ASSOCIATES
for Opponent(s) : 1 -
4.
=====================================================
CORAM
:
HONOURABLE
MR.JUSTICE JAYANT PATEL
and
HON'BLE
SMT. JUSTICE ABHILASHA KUMARI
Date
: 04/08/2010
ORAL
ORDER
(Per
: HONOURABLE MR.JUSTICE JAYANT PATEL)
1. The
basis of the present proceedings is the order dated 14-10-2009 passed
by the Industrial Tribunal below interim application for stay
whereby the respondents herein were directed not to change the
service conditions, without following procedure in accordance with
law,as per the notice dated 20-10-2009.
2. We
have heard Mr.Trivedi with Mr.Vipul Shah for the applicant and
Mr.Chudgar for the respondents.
3. Prima
facie it appears that in spite of the prohibitory order of the
Industrial Tribunal, the attempt is made to over reach the judicial
process and to nullify the effect by creating a situation which may
have adverse effect on the smooth operation of course of law for
implementation of the order, inasmuch as the employees, including the
protected employees, have been retrenched from service and two
employees have been discharged from service.
4. The
contention that retrenchment would not result into alteration of the
service condition, by relying upon the decision of this Court in case
of C.M.C.(India) Proprietor v. Savitaben Atmaram Solanki and
another, reported in 2004(4) GLR 3118, prim facie is not only
without any substance but also lacks bona fide on the part of the
respondents inasmuch as once the change in service condition was
prohibited without following the due process of law, retrenchment or
discharge to any employee and more particularly the protected
employee would result into change of service condition. Further the
said aspect is coupled with the circumstance that those employees who
agreed to abide by the change of service condition, as per notice
dated 15-9-2009, have entered into MoU. This results into showing the
picture of arms twisting to dilute the order passed by the
Industrial Tribunal inasmuch as if the employees are agreeable for
new service conditions, action may not be taken,if not, the action is
taken and the employees are made to suffer. This can hardly be
considered as valid defence on the part of the contemner and such a
conduct may also result into a contempt of the Court subordinate to
this Court, creating an obstruction in the smooth course of law for
implementation of the order, in the system of administration of
justice.
5. Hence
before we pass the further order, including on the aspect of
imposition of punishment, with a view to give opportunity to the
respondent-contemner, it is observed and directed that the alleged
contemner shall undo the things and the orders and the actions, which
have been done in breach of the order of the Industrial Tribunal and
which may also result into over-reaching the judicial process of a
Court subordinate to this Court,which is subject matter in the
present proceedings, within a period of three weeks from today.
5.1 It
is further directed that the respondents Nos.3 and 4, who are stated
to be the persons directly responsible for the administration of
respondent No.2, shall remain personally present and shall also file
affidavit to show cause as to why appropriate punishment should not
be imposed upon them, if the breach continues further, which result
into aggravation of the contempt. It is also observed that if the
actions are undone with a view to respect the order of the Industrial
Tribunal, which is subordinate to this Court, this Court may take
lenient view of the matter.
5.2 It
is observed that the aforesaid would apply in cases of retrenchment
and discharge of the employees concerned, which as observed earlier,
are in breach of the order passed by the Industrial Tribunal and it
would not apply to the cases of transfer for which the grievance is
raised by the petitioner, being alleged breach of the service
conditions.
6. S.O.
to 1-9-2010 for passing further orders.
(Jayant Patel,J)
(Smt.Abhilasha Kumari,J)
arg
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