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SCA/4060/2011 12/ 12 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 4060 of 2011
=========================================================
SARMAN
SANGA KODIYATAR & 14 - Petitioner(s)
Versus
STATE
OF GUJARAT - Respondent(s)
=========================================================
Appearance
:
MS
HIRAL A PANCHAL for
Petitioner(s) : 1 - 15.MR NISARG N TRIVEDI for Petitioner(s) :
1 - 15.
MR AL SHARMA AGP for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE H.K.RATHOD
Date
: 29/03/2011
ORAL
ORDER
Heard
learned advocate Ms. HA Panchal on behalf of petitioner, learned AGP
Mr. AL Sharma appearing for respondent State of Gujarat, District
Collector, Porbandar.
Learned
advocate Ms. Panchal submitted that conciliation proceeding is
pending before Assistant Commissioner of Labour, Porbandar in
respect to industrial dispute raised by Union to make all workmen
permanent by respondent. Today on 29/3/2011 at about 3.30 pm,
conciliation proceeding is taken up for hearing by Assistant
Commissioner of Labour, Porbandar. He is necessary party to present
petition, therefore, permission may be given to join Assistant
Commissioner of Labour, Porbandar having office at Jilla Seva Sadan
– 1, Ranibaug Road, near District Homeguard Office, Porbandar.
Accordingly, permission is granted. The Assistant Commissioner of
Labour is join as party respondent no. 2. Let cause title of
present petition is to be amended.
The
service details of each petitioner is given by petitioner in
Annexure A page 12 as well as particulars given in petition are as
under:
“The
petitioners are working with the respondent since 1996 – 2007
respectively on the different posts i.e. Drivers, Clerks, Computer
Operations, Peons, Xerox Operator as daily wagers, and also getting
the salary on daily wages.
21.2.2011 The
petitioners have sent demand notice on dated 21/2/2011 for getting
the benefits of Regularization on permanent vacant post.
3.3.2011 After
received the said Demand Notice, the respondent has not been allowed
the petitioners to resume their duties.
During
the said period, the petitioners have already approached to the
conciliation officer, and the industrial dispute has been raised by
the petitioners. The next date of hearing is 29/3/2011.
The
petitioners having authentic news about terminating of their service
on the next date of hearing i.e. 29/3/2011.
Therefore,
the petitioners are constrained to file this petition under Article
226 of the Constitution of India, for restraining the respondent
from terminating the service of the petitioners.
Hence,
this petition.”
“Name
of the Petitioners Date of joining Post
1.
Sarman
Sanga Kodiyatar
16.04.1999
Driver
2.
Kishor
Merkhi Haran
20.08.2002
Driver
3.
Bachubhai
A. Joshi
10.03.2004
Driver
4.
Rajesh
Bhikhandas Kubawat
01.07.2000
Driver
5.
Rajalben
Yashwantrai Vyas
01.01.2003
Clerk
6.
Naimesh
Yashwantrai Vyas
10.04.2002
Clerk
7.
Vipul
Hareshbhai Purohit
21.07.2005
Clerk
8.
Nilesh
Rambhai Balas
01.09.2000
Comp.
Opera.
9.
Shailesh
Rambhai Balas
28.11.2002
Comp.
Opera.
10.
Kamlesh
Mohanlal Modha
01.12.2006
Comp.
Opera
11.
Hitesh
Naranbhai Gohel
09.03.2004
Comp.
Opera.
12.
Razak
Karim Sherwani
06.01.1998
Driver
13.
Kishor
Mukundrai Pandya
17.02.1998
Xerox
Opt.
14.
Mayur
Mukundrai Pandya
01.01.1996
Peon
15.
Dahyabhai
Hamir Sadiya
21.09.2007
Peon
The
industrial dispute raised by Amar Gujarat Shramjivi Sangh giving
detailed notice to
District Collector, Porbandar on 21/2/2011. The industrial dispute
raised by Union in favour of present petitioner to confirm or to
make permanent each petitioner after completion of 240 days
continuous service. In response to aforesaid demand notice,
Assistant Commissioner of Labour, Porbandar has initiated
conciliation proceeding and notice has been served to District
Collector, Porbandar, District Porbandar on 7/3/2011 and 16/3/2011.
Therefore, dispute is pending for permanency raised by Union in
favour of present petitioner. Meanwhile, if any order of
termination is to be passed then it amounts to breach of section
33(1)(a) of Industrial Disputes Act, 1947. In such circumstances,
prior permission is necessary so long conciliation is pending in
respect to industrial dispute for better condition of service of
petitioner means permanency.
The
view has been taken by Apex Court in case of The Bhavnagar
Municipality Vs. Alibhai Karimbhai and Ors reported in AIR 1977 SC
1229. The relevant para 12 to 15 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.
14.
The character of the temporary employment of the respondents
being a direct issue before the Tribunal, that condition of
employment, however insecure, must subsist during the pendency of
the dispute before the Tribunal and cannot be altered to their
prejudice by putting an end to that temporary condition. This could
have been done only with the express permission of the Tribunal.
It goes without saying that the respondents were directly concerned
in the pending industrial dispute. No one also deny that snapping of
the temporary employment of the respondents is not to their
prejudice. All the five features adverted to above are present in
the instant case. To permit rupture in employment, in this case,
without the prior sanction of the Tribunal will be to set at
naught the avowed object of section 33 which is principally
directed to preserve the status quo under specified circumstances
in the, interest of industrial peace during the adjudication. We
are, therefore, clearly of opinion that the appellant has
contravened the provisions of section 33(1)(a) of the Act and the
complaint under section 33A, at the instance of the respondents, is
maintainable. The submission of Mr. Parekh to the contrary cannot
be accepted.
15. That,
however, does not conclude the matter. The Tribunal was clearly in
error in not adjudicating the complaint on the merits. It is well
settled that in a complaint under section 32A, event if the employer
is found to have contravened the provisions of section 33, the
Tribunal has to pronounce upon the merits of the dispute between
the parties.’ The order passed in an application under section 33A
is an award similar to one passed in a reference under section 10
of the Act. The award passed has to be submitted to the Government
and the same has to be published under section 17 of the Act. For
the purposes of the Act the complaint under section 33A takes, as it
were, the form of a reference of an industrial dispute by the
appropriate authority and the same has to be disposed of in a like
manner. The Tribunal has committed an error of jurisdiction in
declining to adjudicate the matter and to make its award on the
merits as required under the law. The High Court was, therefore,
not right in dismissing the writ application of the appellant in
limine. We should also. observe that, in the absence of
adjudication on the merits by the Tribunal, the High Court was not
right in holding that the retrenchment by the appellant was “a
gross act of victimisation”.
In
case when industrial dispute is pending mandate of section 33 is to
maintain status quo qua service condition of workmen. This aspect
considered by Apex Court in case of P. D. Sharma Vs. State Bank of
India reported in AIR 1965 Supreme Court 985. The relevant para 12
to 14 are quoted as under:
“12. In
Strawboard Manufacturing Co. v. Govind(1) this Court observed :
“The
plain object of the section was to maintain the status quo
as far as possible during the pendency of any industrial dispute
before a tribunal. But it seems to have been felt that S. 33, as it
stood before the amendment of 1956, was too stringent for it
completely took away the right of the employer to make any
alteration in the conditions of service or to make any order of
discharge or dismissal without making any distinction as to whether
such alteration or such an order of discharge or dismissal was
in any manner connected with the dispute pending before an
industrial authority. It seems to have been felt therefore that
the stringency of the provision should be softened and the employer
should be permitted to make changes in conditions of service
etc. which were not connected with the dispute pending before an
industrial tribunal. For the same reason it was felt that the
authority of the employer to dismiss or discharge a workman should
not be completely taken away where the dismissal or discharge
was dependent on the matters unconnected with the dispute
pending before any tribunal. At the same time it seems to have
been felt that some safeguards should be provided for a workman who
may be discharged or dismissed during the pendency of a dispute on
account of some matter unconnected with the dispute. Consequently S.
33 was re-drafted in 1956 and considerably expanded.” (1)
[1962] Supp. 3 S.C.R. 618, 623.
13. By
enacting s. 33 the Parliament wanted to ensure a fair and
satisfactory enquiry of an industrial dispute undisturbed by any
action on the part of the employer which could create fresh cause
for disharmony between him and his employees. The object of s.
33 is that during the pendency of an industrial dispute status
quo should be maintained and no further element of discord should be
introduced. But then distinction was made between matters connected
with the industrial dispute and those unconnected with it.
14. While
construing the scope of sub-s. 3 of s. 33 we have to bear in mind
the fact that under the common law the employer has a right to
punish his employee for misconduct. Therefore all that we have to
see is, to what extent that right is taken away by sub-s. 3 of S.
33. There is no doubt that at the time the application in question
was made, an industrial dispute was pending between the respondent
and its employees. It is admitted that the appellant is a
‘protected workman’. He had not been discharged or punished before
the industrial dispute was decided, though no doubt the respondent
had proposed to dismiss him after obtaining- the necessary
permission from the tribunal. The application for permission to
dismiss him was made during the pendency of the principal dispute.
No such permission would have been necessary if no industrial
dispute between the respondent and its employees was pending.
Hence, the sole reason for that application was the pendency
of the industrial dispute. Once the industrial dispute was
decided, the ban placed on the common law, statutory or
contractual rights of the respondent stood removed and it was
free to exercise those rights. Thereafter there was no need to
take anybody’s permission to exercise its rights. In other words,
the limitation placed on the respondent’s rights by sub-s. 3 of
S. 33 disappeared the moment the industrial dispute was decided.
We are in agreement with the tribunal that it had no competence to
consider the application made by the respondent after the
industrial dispute was decided. ”
The
Apex Court has also taken similar view in case of M/s
Lokmat Newspapers Pvt Ltd Vs. Shankarprasad reported in 1999 AIR SCW
2565. The relevant para 25 and 30 are quoted as
under:
“25.
The aforesaid statutory requirements leave no room for doubt that
after closing the investigation and after having arrived at the
conclusion that no settlement is possible between the parties, the
Conciliation Officer has to spend some more time before submitting
his detailed written report about failure of consideration for
information and necessary action by the State Government. In the
very nature of things, therefore, such requirement will take at
least a couple of days, if not more, for the conciliator after
closing the investigation to enable him to send an appropriate
report to the State Government. It is, therefore, obvious that on
22.6.1982 when by 4.35 p.m. the Conciliation Officer declared that
settlement was not closed the investigation, neither his statutory
function did not come to an end nor did he become functus officio.
His jurisdiction had to continue till he submitted his report as per
Section 12(4) to the appropriate Government. Even such preparation
of the report and sending of the same from his end to the
appropriate Government would obviously have taken at least a few
days after 22.6.1982. It must, therefore, be held that the
conciliator remained in charge of the conciliation proceedings at
least for a couple of days after 22.6.1982. It is, therefore,
difficult to appreciate how within half an hour after the closing of
investigation by the conciliator and before his getting even a
breathing time to prepare his detailed written report about failure
of conciliation to be sent to the Government as per Section 12(4),
the appellant could persuade itself to presume that conciliation
proceedings had ended and, therefore, it was not required to follow
the procedure of Section 33(1) and straightaway could pass the
impugned order of retrenchment within 25 minutes of the closing of
the investigation by the conciliator on the very same day. It is
difficult to appreciate the reasoning of the Labour Court that after
the closer of investigation the conciliator became functus officio
and the management could not have approached him for express
written permission to pass the impugned order. It is easy to
visualise that even on the same day i.e. on 22.6.1982 or even on the
next day, before the conciliator had time even to start writing his
report, such an express permission could have been asked for by the
appellant as the conciliator by then could not be said to have
washed his hand off the conciliation proceedings. He remained very
much seized of these proceedings till at least the time the report
left his end apart from the further question whether conciliation
proceedings could be said to have continued till the report reached
the State Government. Thus, on the express language of Section 12(4)
the conclusion is inevitable that closer of investigation by 4.35
p.m. on 22.6.1982 did not amount to termination of conciliation
proceedings by that very time. The argument of learned counsel for
the appellant was that closer
of investigation automatically amounted to termination of
conciliation proceedings. This argument proceeds on a wrong premise
that closer of investigation by the conciliator is the same as
closer of conciliation proceedings. The legislature while enacting
Section 12(4) has deliberately not used the words `closer of
conciliation’ but, on the contrary, provided that after closer of
investigation something more was required to be done by the
conciliator as laid down under Section 12(4) before he can be said
to have done away with conciliation proceedings earlier initiated by
him. On this
conclusion alone the decision rendered by the Division Bench of the
High Court that the impugned order of termination dated 22.6.1982
was issued by the appellant without following the procedure of
Section 33(1) of the I.D. Act has to be sustained.”
30. On
the contrary, we find that the aforesaid decision has taken a
correct view on the question posed for our consideration in the
present case. In view of the aforesaid discussion, therefore, there
was no escape from the conclusion to which the Division Bench in the
impugned judgment reached that on 22.6.1982 when the order of
retrenchment was passed against the respondent, the
appellant-management had committed breach of Section 33(1) of the
Act by not passing the said order after obtaining express previous
permission in writing of the Conciliation Officer before whom the
conciliation proceedings must be held to be pending in the evening
of 22.6.1982. The impugned retrenchment order must be held to be
illegal being contrary to the aforesaid provision of the I.D. Act.
Point No.2 is, therefore, answered in affirmative against the
appellant and in favour of the respondent. ”
In
view of aforesaid observation made by Apex Court and considering
fact which are narrated in present petition, when conciliation
proceeding is pending the notice has been issued by Conciliation
officer on 7/3/2011. Therefore, let other side may file reply to
present petition.
Issue
notice to respondents returnable on 18/4/2011. Meanwhile, it is
directed to respondent no. 1 not to terminate service of any
petitioner till 18/4/2011. Direct service is permitted.
(H.K.RATHOD,
J)
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