{"id":45804,"date":"2011-03-16T00:00:00","date_gmt":"2011-03-15T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/divisional-vs-ravikumar-on-16-march-2011"},"modified":"2018-10-12T09:53:56","modified_gmt":"2018-10-12T04:23:56","slug":"divisional-vs-ravikumar-on-16-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/divisional-vs-ravikumar-on-16-march-2011","title":{"rendered":"Divisional vs Ravikumar on 16 March, 2011"},"content":{"rendered":"
Gujarat High Court<\/div>\n
Divisional vs Ravikumar on 16 March, 2011<\/div>\n
Author: H.K.Rathod,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/805\/2011\t 10\/ 10\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 805 of 2011\n \n\n \n \n=========================================================\n\n \n\nDIVISIONAL\nCONTROLLER - Petitioner(s)\n \n\nVersus\n \n\nRAVIKUMAR\nBHALABHAI PARMAR - Respondent(s)\n \n\n=========================================================\n \nAppearance\n: \nMR\nHARDIK C RAWAL for\nPetitioner(s) : 1, \nNOTICE SERVED for Respondent(s) :\n1, \n=========================================================\n\n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE H.K.RATHOD\n\t\t\n\t\n\n \n\n \n \n\n\n \n\nDate\n: 16\/03\/2011 \n\n \n\n \n \nORAL\nORDER<\/pre>\n
Heard
\n\tlearned advocate Mr. HC Rawal on behalf of petitioner Corporation.\n<\/p>\n
The
\n\tpetitioner Corporation has challenged award passed by Industrial
\n\tTribunal, Ahmedabad in complaint IT no. 4\/2006 in reference IT no.
\n\t123\/2003 dated 23\/7\/2010.\n<\/p>\n
Learned
\n\tadvocate Mr. Raval appearing for petitioner Corporation raised
\n\tcontention that respondent workman was casual workman and his
\n\tappointment was not made under Statutory Rules and Regulation of
\n\tCorporation. Therefore, he can not consider to be a workman covered
\n\tby definition of workman under section 2(S) of Industrial Disputes
\n\tAct, 1947.  The respondent workman was given work of arranging
\n\ttickets bundles on temporary basis as casual workman.  But work
\n\tstarted decreasing and was being done by modern techniques. So work
\n\tgiven to respondent workman was stopped and wages for days worked by
\n\trespondent were paid to respondent.  Therefore, he submitted that
\n\tindustrial Tribunal has committed gross error in coming to
\n\tconclusion that petitioner Corporation has violated section 33(1)(a)
\n\tof Industrial Disputes Act, 1947 while terminating service of
\n\trespondent on 16\/8\/2005.\n<\/p>\n
He
\n\talso raised contention that Industrial Tribunal has committed gross
\n\terror in entertaining complaint under section 33(A) of Industrial
\n\tDisputes, Act 1947 because Corporation has not committed any breach
\n\tof section 33(1)(a) or section 33  of Industrial Disputes Act, 1947.
\n\t He submitted that during pendency of reference in which dispute
\n\traised, respondent was not concerned workman and termination is not
\n\tconnected with pending dispute. Therefore, he submitted that
\n\tIndustrial Tribunal has committed gross error in granting
\n\treinstatement of respondent workman as casual workman in
\n\tCorporation.\n<\/p>\n
He
\n\talso submitted that Industrial Tribunal, Ahmedabad has also
\n\tcommitted gross error in setting aside termination order passed by
\n\tCorporation against respondent.\n<\/p>\n
I
\n\thave considered submission made by learned advocate Mr. Raval and I
\n\thave also perused award passed by Industrial Tribunal, Ahmedabad in
\n\tcomplaint IT no. 4\/2006.  The complaint was filed by workman under
\n\tsection 33 (A) of Industrial Disputes Act, 1947. According to
\n\tworkman, he was working as casual workman in Jamnagar Division
\n\toffice in tickets section w.e.f. 1\/11\/1999. The respondent workman
\n\twas arranging different type of blocks in proper manner and as per
\n\tinstructions given by cashier of booking section.  In each month,
\n\tthere were twenty four days continuous working and considering six
\n\tday i.e. Saturday and Sunday in all thirty days continuous working
\n\tare there. The wages has been paid to workman on vouchers.
\n\tAccordingly for presence, certificate has been issued by Corporation
\n\tin favour of respondent workman.  The case of respondent workman is
\n\tthat he has completed 180 days continuous service.  Therefore, he
\n\tentitled benefit of time scale.  He has completed 240 days
\n\tcontinuous service and also completed more than five years service.
\n\tTherefore, on the basis of statement of working days workman is
\n\tentitled to become permanent employee of Corporation.  The
\n\trepresentation was made to Divisional Controller, Jamnagar which
\n\tresulted into termination of workman on 16\/8\/2005.  According to
\n\tworkman, he was doing work on computer and was also sent for
\n\ttraining in Bhuj Division on 18\/1\/2001.  The administrative work has
\n\tbeen carried out by him and there was an industrial dispute pending
\n\tbefore Industrial Tribunal being reference IT no. 123\/2003 in
\n\trespect to various demand raised by Union.  Therefore, during
\n\tpendency of such reference, without prior permission, termination of
\n\tworkman is amounts to breach of section 33 of Industrial Disputes
\n\tAct, 1947.\n<\/p>\n
Therefore,
\n\tcomplaint was filed by workman.  The petitioner Corporation has
\n\tfiled reply vide exh 17 raising contention that in pending reference
\n\tbeing no. 123\/2003, respondent has no connection at all with dispute
\n\tand section 33 is not violated by Corporation. The workman was
\n\tworking as casual employee, therefore, complaint under section 33 A
\n\tof Industrial Dispute Act, 1947 is not maintainable. The complainant
\n\thas produced certain documents exh 9 office order of petitioner
\n\tCorporation, exh 10 presence of respondent workman for March 2004,
\n\texh 11 presence of April 2004, exh 12 presence of March 2005, exh 13
\n\tletter of Senior Accountant to increase working hours of respondent
\n\tworkman, exh 14 letter to sent respondent workman for training on
\n\tcomputer, exh 15 payment which was made to complainant by voucher
\n\tand exh 22 total working days and payment which has been made
\n\tagainst it as well as copy of voucher are also produced on record by
\n\tCorporation from page 1 to 244.\n<\/p>\n
Thereafter,
\n\tmatter has been heard by Industrial Tribunal.  On the basis of
\n\trecord, Industrial Tribunal has come to conclusion that service of
\n\trespondent workman was terminated on 16\/8\/2005 without following due
\n\tprocess of law and though industrial dispute was pending no prior
\n\tpermission has been obtained by Corporation.  Therefore, it has been
\n\theld that section 33 of Industrial Disputes Act, 1947 has been
\n\tviolated by Corporation and respondent workman is covered by
\n\tdefinition of workman under section 2(S) of Industrial Disputes Act,
\n\t1947.  The workman has completed more than 240 days continuous
\n\tservice from date of joining 1\/11\/1999 to 16\/8\/2005.  The issues
\n\thave been framed by Industrial Tribunal, Ahmedabad in para 6. The
\n\tIndustrial Tribunal has considered decision of Apex Court in case of
\n\t The Bhavnagar Municipality Vs. Alibhai  Karimbhai
\n\t& Ors reported in AIR 1977 SC 1229. The relevant
\n\tdiscussion made in para 12 and 13 are quoted as under:\n<\/p>\n
\t“12.\tBefore
\n\twe proceed further we should direct our attention to  the subject
\n\tmatter of the\tindustrial  dispute  pending before the Tribunal. It
\n\tis sufficient to take note  of the principal  item of the dispute,
\n\tnamely, the demand  of the respondents for conversion of the
\n\ttemporary status of  their employment  into permanent.  To
\n\trecapitulate  briefly the appellant  employed  daily rated workers
\n\tto do the  work  of  boring\tand  hand pumps in its Water Works
\n\tSection.  These workers have been in employment for over  a
\n\tyear.\tThey claimed\t permanency in their employment on their putting
\n\tin\tmore than 90 days’ service.  They  also demanded two  pairs of
\n\tuniform every year, cycle allowance at the rate  of Rs. 10\/- per
\n\tmonth, Provident Fund benefit and National Holidays and other
\n\tholidays allowed to the other workers. While\tthis particular
\n\tdispute  was pending before the Tribunal, the appellant  decided to
\n\tentrust the work, which had till\tthen been performed by these
\n\tworkers in the Water Works  Section, to a contractor. On the
\n\temployment of the contractor by the Municipality  for  the self-same
\n\twork, the services  of\tthe respondents became unnecessary and the
\n\tappellant passed\tthe orders\tof  retrenchment.  It is, therefore,
\n\tclear  that  by \tretrenchment of the respondents even the temporary
\n\temployment of the workers ceased while their dispute before the
\n\t\tTribunal was pending in order to improve that temporary and
\n\tinsecure status.\n<\/p>\n
\t13.
\n\tRetrenchment  may  not, ordinarily, under all  circumstances, amount
\n\tto alteration of the conditions of  service. \tFor instance, when a
\n\twage dispute is pending before a Tribunal and on account of the
\n\tabolition of a particular  department the workers therein have to be
\n\tretrenched by  the\temployer,such a retrenchment cannot amount to
\n\talteration of the conditions of service. In this particular case,
\n\thowever, the subject matter: being directly connected  with\tthe
\n\tconversion  of the  temporary employment into  permanent, tampering
\n\twith\tthe status quo ante of these workers  is  a \tclear alteration
\n\tof the conditions of their service.\tThey were entitled during the
\n\tpendency of the proceeding  before the Tribunal to continue as
\n\ttemporary employees hoping for a better dispensation in the pending
\n\tadjudication. And if\tthe appellant wanted  to  effect a change of
\n\ttheir  system  in getting\tthe work done through a contractor instead
\n\t of  by these temporary workers, it was incumbent upon the appellant
\n\tto  obtain  prior permission of the Tribunal to\tchange the
\n\tconditions of their employment leading to  retrenchment  of their
\n\tservices.\tThe alteration of the method of work culminating in
\n\ttermination of the services by way of retrenchment in this ease has
\n\ta direct impact on the adjudication proceeding.   The alteration
\n\teffected in the temporary  employment of the respondents which was
\n\ttheir condition of service immediately before the commencement of
\n\tthe proceeding before the Tribunal, is in regard to a matter
\n\tconnected  with the pending industrial dispute.”\n<\/p>\n
In
\n\tview of aforesaid decision of Apex Court and considering being an
\n\tundisputed fact that service of respondent workman was orally
\n\tterminated on 16\/8\/2005.  At that occasion, general demand for
\n\tbetter condition of service in respect to workman those who were
\n\tworking in Corporation was pending being reference IT no. 123\/2003
\n\tand this respondent workman is considered to be concerned workman in
\n\tpending dispute and it also considered to be affected workman.
\n\tDuring pendency of that reference, service of respondent was
\n\tterminated without giving any opportunity to workman. The respondent
\n\tworkman has completed more than seven years continuous service as
\n\tcasual employee in booking section for arranging different kind of
\n\ttickets blocks as per instructions given by cashier from booking
\n\tsection.  Therefore, termination of respondent workman by
\n\tCorporation during pendency of reference without prior permission
\n\titself is violated section 33 of Industrial Disputes Act, 1947. In
\n\tcase of breach of section 33 committed by Corporation then section
\n\t33(A) complaint can be file by concerned workman before Industrial
\n\tTribunal which may be considered to be a reference referred by
\n\tAppropriate Government under section 10 of Industrial Disputes Act,
\n\t1947.  Therefore, after considering entire matter this being an
\n\tundisputed fact is that workman was employed by Corporation as
\n\tcasual workman w.e.f. 1\/11\/1999 and remained continuous in service
\n\tupto 16\/8\/2005 date of termination and in between workman was
\n\tremained continuous in service and has completed 240 days continuous
\n\tservice in each year. Even though, section 25 F has not been
\n\tfollowed by Corporation at the time of terminating service of
\n\trespondent workman. The respondent workman was connected, concerned
\n\tand affected workman in pending dispute 123\/2003.\n<\/p>\n
Therefore,
\n\taccording to my opinion respondent workman is covered by definition
\n\tof workman under section 2(S) of Industrial Disputes Act, 1947 and
\n\tindustrial dispute no. 123\/2003 was pending where general demand has
\n\tbeen raised by Union for better condition of service of concerned
\n\tworkman wherein this respondent is also concerned workman. In such
\n\tcircumstances, retrenchment of present respondent without prior
\n\tpermission is amounts to breach of section 33 of Industrial Disputes
\n\tAct, 1947.  The decision of Apex Court in case of Bhavnagar
\n\tMunicipality is squarely covered the issue. Therefore, Industrial
\n\tDispute has rightly examined matter and come to conclusion that
\n\tsection 33 has been violated.  Therefore, complaint under section 33
\n\tA is maintainable.  The Industrial Tribunal has passed an order
\n\twhich considered to be balanced order because no back wages has been
\n\tawarded in favour of workman by Industrial Tribunal, Ahmedabad and
\n\tsimply reinstatement to original post has been granted in favour of
\n\trespondent workman.  For that, according to my opinion, Industrial
\n\tTribunal, Ahmedabad has not committed any error which would require
\n\tinterference by this Court while exercising power under Art. 227 of
\n\tConstitution of India.\n<\/p>\n
I
\n\thave considered reasoning given by Industrial Tribunal, Ahmedabad
\n\tand matter has been discussed at length by Industrial Tribunal,
\n\tAhmedabad.  On the basis of documents produced by Corporation most
\n\tof facts are remained undisputed which included date of joining and
\n\tdate of termination.  The industrial dispute was pending being
\n\treference no. 123\/2003 for general demand raised by Union for better
\n\tcondition of service in which respondent workman was concerned
\n\tworkman.  Even though, while terminating\/retrenching respondent no
\n\tprior permission was obtained. Therefore, complaint under section 33
\n\tA is maintainable and otherwise also section 25 F is not also
\n\tfollowed by Corporation though workman has completed continuous
\n\tservice of 240 days in each year from 1\/11\/1999 to 16\/8\/2005.
\n\tTherefore, order of termination is also violated section 25 F of
\n\tIndustrial Disputes Act, 1947.  The order of retrenchment is ab
\n\tinitio void and workman is deemed to be in service as decided by
\n\tApex Court in case of  Mohan Lal Vs. The Management of M\/s
\n\tBharat Electronics, Ltd.,  reported in AIR 1981 SC  1253.
\n\tIn light of this back ground, no interference would require by this
\n\tCourt under Article 227 of Constitution of India.\n<\/p>\n
The
\n\tcontention raised by learned advocate Mr. Raval can not be accepted,
\n\ttherefore, rejected. Hence, there is no substance in present
\n\tpetition.  Accordingly, present petition is dismissed.\n<\/p>\n
\t\t\t\t\t\t\t\t(H.K.RATHOD,
\nJ)<\/p>\n
asma<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court Divisional vs Ravikumar on 16 March, 2011 Author: H.K.Rathod,&Nbsp; Gujarat High Court Case Information System Print SCA\/805\/2011 10\/ 10 ORDER IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 805 of 2011 ========================================================= DIVISIONAL CONTROLLER – Petitioner(s) Versus RAVIKUMAR BHALABHAI PARMAR – Respondent(s) ========================================================= Appearance : MR HARDIK C […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-45804","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nDivisional vs Ravikumar on 16 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/divisional-vs-ravikumar-on-16-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Divisional vs Ravikumar on 16 March, 2011 - 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