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SCA/13301/2008 2/ 9 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 13301 of 2008
=========================================
SHREE
KRISHNAKESHAV LABORATORIES LTD - Petitioner(s)
Versus
STATE
OF GUJARAT & 2 - Respondent(s)
=========================================
Appearance :
MR
GM JOSHI for
Petitioner(s) : 1,
GOVERNMENT PLEADER for Respondent(s) : 1,
RULE
SERVED for Respondent(s) : 1 - 3.
MRS SANGEETA N PAHWA for
Respondent(s) : 3,
=========================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 23/08/2010
ORAL
ORDER
This
Court on 02.05.2010 passed the following order :-
Heard
Mr. G.M.Joshi, learned advocate for the petitioner, Mr. N.J.Shah,
learned AGP for the respondent No.1 and Mrs. S.N.Pahwa, learned
advocate for the respondent No.3.
In
this petition, the petitioner has brought under challenge order
passed by the respondent No.1 making reference to Industrial Tribunal
for adjudication of the dispute mentioned therein and also
simultaneously prohibiting lock-out. The petitioner has also
challenged the action of the respondent Nos.1 and 2 of assuming that
there is a lock-out and the lock-out is illegal and the same should
be prohibited.
Affidavits
and counter affidavits have been filed by the respective parties. An
affidavit has been filed by respondent Nos.1 and 2 supporting and
justifying the order of reference. Likewise, the respondent No.3
union has also filed reply affidavit supporting the action of the
respondent Nos.1 and 2. The petitioner has filed counter affidavit in
response to the said reply affidavits by respondent Nos.1, 2 and 3.
Mr.
Joshi has appeared for the petitioner and submitted that as per the
scheme of Section 10 of the Industrial Disputes Act, 1947
(hereinafter referred to as the Act ), before making order or
direction prohibiting lock-out, there must be an existing dispute /
reference and only if such reference is existing before the date on
which it proposes to prohibit the lock-out then only, order
prohibiting lock-out can be made. He submitted that the date on which
the impugned order came to be passed, no reference / dispute was
pending and that therefore, order / direction prohibiting the
so-called lock-out could not have been and should not have been
passed. He submitted that since this fundamental and primary
requirement has been overlooked while making order of reference, the
impugned order is unsustainable.
Mr.
Joshi further submitted that the impugned order is also bad for the
reason that it is made on presumption that there is a lock-out
coupled with another presumption that the alleged lock-out is
illegal. Subsequently, particularly in view of order dated 24.2.2009,
Mr. Joshi gave-up his contention to the effect that the order is bad
because it assumes that the so-called lock-out is illegal as the
appropriate government has, by the said order dated 24.2.2009,
amended the earlier order of reference and has dropped the word
illegal . Thus, the sting of element of presumption about
illegality is taken-off the text of order of reference. Mr. Joshi has
also raised objection that the sponsoring union is not a majority
union. Another contention raised by Mr. Joshi against the impugned
order of reference is that the order of reference does not reflect
correct and complete dispute between the parties and that in view of
the text, scope & language of the order, the petitioner employer
will not be in a position to raise contention or defence on the
ground that the employees were on strike. He submitted that in
support of his submission, Mr. Joshi has relied upon the judgments of
the Hon’ble Apex Court in the case of Delhi Administration, Delhi
V/s. Workmen of Edward Keventers & Another reported in 1978
(1) SCC 634 and in the case of
Moolchand Kharati Ram Hospital K. Union V/s. Labour
Commissioner & Another reported
in 2002 (10) SCC 708.
Countering
the submissions, Mrs. Pahwa submitted that the employees were never
on strike and in fact, the employer was compelling the employees to
sign an undertaking (she referred to the documents at pages 14 to 42)
which compelled the employees to admit that they were on illegal
strike. Obviously, the workmen would not sign such an undertaking.
The workmen, she submitted, were therefore not allowed to join their
duties. She submitted that the petitioner employer informed the
employees that unless they signed the said undertaking, they will not
be allowed to resume their work. She submitted that in view of such
action of the petitioner, complaint was made on 3.7.1978 by the union
to the office of respondent No.2 informing about the afore-situation
and at that time there was no claim by the petitioner that the
employees were on strike. She submitted that the allegation that the
employees were on strike is an afterthought which has been raised by
the petitioner at a later stage. Mrs. Pahwa relied upon the judgment
of this Court in the case of Swastik Textile Engineering Private
Limited V/s. Rajendrasingh Santsingh reported in 1984 (1) GLR
470 to substantiate her submission that the workmen cannot be
asked to give an undertaking which tentamounts to admission that they
were on strike.
She
emphatically also submitted that considering the scheme of the Act,
it is not impermissible for the appropriate government to prohibit
the lock-out while making the order of reference.
Any
other contentions have not been raised by either sides. So far as
respondent Nos.1 and 2 are concerned, Mr. Shah, learned AGP submitted
that except what is stated in the affidavit, there is no other
submission to be made.
In
light of the conflicting submissions made by both the sides and
particularly in light of the contentions raised with regard to scope
of Section 10(3), the petition requires to be considered in detail
hence, RULE.
So
far as prayer for interim relief is concerned, the Court is conscious
of the fact that if the interim relief as prayed for is granted, it
would stall the entire reference proceedings and therefore,
at the outset, it was inquired from the learned AGP as to whether the
appropriate government is considering or proposing to make
appropriate amendment in the order of reference so as to reflect the
correct and complete dispute between the parties. However, as noticed
above, learned AGP has merely made one submission that the respondent
Nos.1 and 2 have nothing to say except what is stated in the
affidavit.
So
far as the affidavit of respondent Nos.1 and 2 is concerned, a glance
at the said affidavit shows that the concerned officer of the
respondent No.2 has arrived at a conclusion or framed an opinion that
there was no strike. This is an assertion of fact by the respondents
No.1 and 2 which echos the claim of respondent No.3 union also. On
the other hand, the petitioner claims that at the relevant time
strike was resorted to by the workmen and in support of the said
submission Mr. Joshi relied upon the document at page 60 of the
petition which is a statement recorded by the GLO on 15.7.2008. On
the basis of the said statement, Mr. Joshi submitted that the
workmen were not reporting for duty in concerted manner.
Mrs.
Pahwa on the other hand, while relying upon the document at page 59,
which is a statement by workman recorded by the GLO, submitted that
there is nothing in the statement (or in any other contemporaneous
material) which would show that the workmen were on strike. In view
of the submissions and counter submissions by the contesting parties
what emerges is that there is diagonally opposite stand between the
parties inasmuch as the petitioner employer claims that there was a
strike while the workmen claim that actually they have been
locked-out and they have not been allowed to report for duty. At the
least, such stand of both the sides constitutes industrial
dispute between the parties. When the order of reference is made
it ought to be such which would reflect the correct and complete
dispute between the parties so that the parties can lead appropriate
evidence and defence on the basis of the order of reference. It is
settled position that the terms of reference defines the jurisdiction
of the tribunal to adjudicate particular dispute referred by virtue
of the order of reference. Hence, the order of reference and its
terms are very crucial for both the sides as well as for the tribunal
to ascertain the scope of adjudication and also to frame issues.
In
present case, it prima facie appears that there is a dispute between
the parties on the point as to whether they were on strike or not
and/or whether there was strike or lock-out. It is claimed that such
dispute is not clearly spelt-out in the order of reference and that
therefore, the petitioner claims, the order of reference is
defective. It is also urged that if the proceedings are allowed to
proceed on the basis of the order of reference as it stands, the
petitioner apprehends that it will not be able to lead proper defence
and the scope of the tribunal to frame issues would be, to that
extent, get truncated and the petitioner may not be in position to
lead appropriate evidence. Whether this would be a position or not is
a matter which is required to be considered likewise the scope of
authority under Section 10(3) also requires consideration. Hence,
while making Rule returnable on 25th
June, 2009 with direction that the matter will be heard
peremptorily, the operation of the order of reference is stayed by
way of interim relief.
In
the meanwhile, it would be open for the appropriate government to
consider the contentions raised by the petitioner with regard to the
order of reference mainly the objection that in its present form and
language the impugned order of reference does not reflect the
complete dispute between the parties. If after considering the said
aspect appropriate government considers it appropriate to amend the
order of reference, it may do so and place on record of present
petition so that necessary orders can be passed.
In
view of above, State Government to clarify whether Reference is
modified or any fresh order is passed or not.
Stand
over to 06th September, 2010.
[K.S.Jhaveri,
J.]
satish
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