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2009 DIGILAW 672 (GUJ)

Kaira Can Company Ltd. v. State of Gujarat

2009-10-09

S.R.BRAHMBHATT

body2009
JUDGMENT : S.R. Brahmbhatt, J. The petitioner, employer, first party in Reference (I.T.) No.9 of 2007 has approached this Court under Article 226 of the Constitution of India challenging the Demand Case No.14 of 2006 and the order under reference made by the respondent No.2 on 23.2.2007 referring the dispute to the Industrial Tribunal, wherein it was marked as Reference (I.T.) No.9 of 2007 on various grounds including non-reflection of lis between the parties. 2. The facts leading to the filing of this petition are set out as under: - (1) The petitioner employer is a limited company and the second party are the workmen in the said Company. There was a settlement between the parties on 8.1.2003 and the said settlement was for the period from 1.10.2002 to 30.9.2005. On 11.7.2005 the respondent No.3 Union gave notice of termination of settlement after issuing notice for termination. The respondent No.3 raised demand before the petitioner company vide their communication dated 10.8.2005 and the talks were going on. The petitioner has contended that as the communications were going on for settling the dispute in the wake of termination of settlement notice, the union and the workmen should have restrained themselves from resorting to coercive steps including going on strike. The workmen respondent No.3 Union gave notice of strike on 24.11.2005 which included several programmes of demonstration and agitation. The management on 28.11.2005 requested the Union not to resort to strike in view of the settlement operating between the parties on 3.12.2005. A letter was sent to the petitioner company by the respondent No.3 indicating that the workmen will go on Fast with effect from 12.12.2005. The Company displayed on its notice board on 5.12.2005, 7.12.2005 and 1.2.2006 urging the workmen not to go on illegal strike and not to indulge in unfair labour practice. The Union leaders prevented workmen from resuming their duties on 2.2.2006. Ultimately, the petitioner as well as the workmen struck settlement which was reduced in writing and executed on 13.3.2006. This settlement had its tenure of 3 years and as per Clause 10(4) of the settlement, the parties agreed that the same shall have effect from 1st October, 2005 to 30th September, 20008 and demand of whatsoever nature effecting any financial burden upon the company if raised by the respondent No.3 Union it shall not be maintained as per the relevant Clauses of the settlement. The Union on the very same day i.e. on 13th March, 2006 issued notice raising demand for wages for the period for which the workmen were prevented from working. It was the say of the petitioner company that the workmen were in fact on strike for the said period and it was therefore, not so-called lockout as sought to be dubbed by the workmen for recovering wages for the said period. The dispute itself ought not to have been raised as the settlement dated 13th March, 2006 clearly envisaged that no demand would be raised by the Union so as to create any financial burden upon the Company. The settlement being package deal there ought not to have been any demand in such a nature. In the conciliation proceedings started in the form of Demand Case No.14 of 2006 wherein also the petitioner company struck to its stand that the workmen were not entitled to raise this dispute in the light of the valid settlement which inures as on date and which prevents workmen from raising any demand that may have impact upon the financial condition of the company and the workmen were not entitled to the wages for the period as they, of their own accord, did not attend duty and were on strike. The strike period is wrongly said to be lock out and on that basis the wages have been demanded. The conciliation proceedings failed and, therefore, the State referred the matter for adjudication vide its order on 23.2.2007 where the company is to pay the wages for the period of lockout from 21.1.2006 to 10.2.2006. The said reference was marked as Reference (I.T.) No. 9 of 2007, the settlement of claim and written statement on behalf of the employer also were filed. In such written statement, the employer also contended that the strike was illegal strike and it was not lockout at all and hence the employer was not liable to pay the wages for the period of so-called lockout which in fact was a strike. The company had to put an end to the services of the 5 workmen as it was very difficult to continue them in job as per the say of the Company. The company had to put an end to the services of the 5 workmen as it was very difficult to continue them in job as per the say of the Company. The workmen, therefore, have made appropriate complaints as during the pendency of the Reference, Company had put an end to the services of the workmen without appropriate procedure including that of seeking approval from the competent Court. 3. The petitioner company, therefore, being aggrieved with the very raising of demands, conducting of the conciliation proceedings in the form of Demand Case No.14 of 2006 and the order of Reference dated 23rd February, 2007, approached this Court under Article 226 of the Constitution of India challenging the same. 4. This Court on 27.8.2009 while issuing notice observed that the notice was being issued for final disposal and it was made returnable on 9.9.2009, the petitioner did not join the respondent No.2 i.e. Union initially. During the pendency of this petition, the respondent No.4 i.e. New Gujarat Mazdoor Manch a registered Trade Union approached this Court by filing Civil Application No. 10120 of 2009 in Special Civil Application No. 8975 of 2009 for being impleaded them as a party. As the result of this, the petition was likely to affect them as now they were espousing cause of the workmen in the Reference. It is also required to be noted at this stage that the said respondent No.4 in fact have now themselves taken over the task of representing the workmen in the pending of reference in place of respondent No.3 i.e. Shramjivi Karmachari Sangharsh Sangh, who initially gave no objection for workmen being represented by New Gujarat Mazdoor Manch and as such they were mentioned on record of the reference. The respondent No.4 has majority of the workmen so that it can represent the workmen in the pending reference and hence it obtained no objection from respondent No.3 for representing the workmen in pending reference and accordingly after obtaining no objection from respondent No.3 for representing workmen in reference, applied to the Industrial Tribunal for being permitted to represent the workmen as a party to the reference and at that time, the respondent No.3 turned around and resiled from its objection and submitted that they be permitted to withdraw the objection which they were originally granted in favour of respondent No.4. 5. 5. Learned counsel for the parties agreed for final disposal of this matter at the admission stage itself. 6. Shri D.R. Dave, learned advocate appearing for the petitioner contended that the order of Reference dated 23rd February, 2007 was not tenable in the eyes of law. The conciliation proceedings which were in the form of Demand Case No.14 of 2006 itself were not tenable in view of the fact that there was a valid existing settlement arrived at on 13rd March, 2006 between the parties where under it is unequivocally agreed by both the sides that the workmen shall not raise any dispute during the period of settlement so as to create additional financial burden upon the employer company and in the light of those terms of settlement, the workmen were precluded from raising any industrial dispute which would have impact upon the company as the settlement was a package deal and the industrial peace was therefore required to be maintained without causing any extra financial burden upon the company. In view this, when there was a valid settlement executed between the parties on 13th March, 2006. It was naturally not open to the workmen to have issued any notice raising disputes right on that date and, therefore, the conciliation proceedings itself were ill deviced and ought not to have been proceeded with. 7. Shri Dipak Dave learned advocate for the petitioner further contended that without prejudice to the aforesaid contention assuming for the sake argument that the conciliation proceedings were validly proceeded with, then also it was duty cast upon the respondent No.2 to take into consideration the provisions of settlement and the submission of the petitioner that the demands were not justified and in that way did not exist any valid industrial dispute at all for any reference to the Tribunal. The appropriate authority i.e. the respondent No.2 did not consider the submission raised by the petitioner during the conciliation proceedings as well as with regard to non-maintainability of the demand notice in the light of the terms of settlement. The order of respondent No.2, therefore, suffers from non-application of mind as it did not give any reasons whatsoever for not accepting the submission with regard to the maintainability of their very demands in light of the terms of settlement. 8. The order of respondent No.2, therefore, suffers from non-application of mind as it did not give any reasons whatsoever for not accepting the submission with regard to the maintainability of their very demands in light of the terms of settlement. 8. Shri Dave, learned counsel appearing for the petitioner further submitted that the terms of reference did not reflect true dispute between the parties. The learned counsel has through out taken up a stand that the workmen were never prevented from attending the duty by the Management. It was the workmen's group which prevented the other workmen and gave call of strike which was not legal. Therefore, the wages for that period were not admissible to the workmen. The factum of no lockout at the behest of the company ought to have been taken into consideration by the appropriate Government for referring the matter which ought to have been taken into consideration. The terms of reference on the face of it would go to show that the same did not reflect the real lis between the parties and, therefore, on that count also the order of Reference dated 23rd February, 2007 is required to be quashed and set aside. 9. Shri Dave, learned advocate for the petitioner explained all these contentions in order to overcome the possible submission of delay relying upon the following authorities:- 1. In the case of National Engineering Industries Ltd. v. State of Rajasthan reported in (2000) 1 SCC 371 . 2. In the case of Rushabh Precision Bearings Ltd. v. Mill Mazdoor Sabha reported in 2007(16) GHJ 4 . 3. In the case of Executive Engineer v. Dilipsinh C. Chavada reported in 2005(3) G.L.H. 285 . 4. In the case of Barauni refinery Pragatisheel Shramikparishad v. Indian Oil Corporation Limited and others, General Secretary Barauni reported in 1991(1) SCC 4 . 5. In the matter decided in Special Civil Application No. 2362 of 2009 in the case of Swastik Textile Engineers Pvt. Ltd. v. State of Gujarat. 6. In the case of Workmen v. I.I.T.I. Cycles of India Limited reported in 1995(Supp2) SCC 733. 7. In the case of Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd. and another reported in (1979) 2 SCC 762. Authorities on the question of delay:- 1. In the case of Hitendrakumar Thakordas Raval and others v. State of Gujarat and others reported in 1980 (1) GLR 83 . 2. 7. In the case of Pottery Mazdoor Panchayat v. Perfect Pottery Co. Ltd. and another reported in (1979) 2 SCC 762. Authorities on the question of delay:- 1. In the case of Hitendrakumar Thakordas Raval and others v. State of Gujarat and others reported in 1980 (1) GLR 83 . 2. In the case of Mayurakshi Cotton Mills and others v. Panchra Mayurakshi Cotton Mills Employee's Union and others reported in AIR 2000 SC 1206 . 3. In the case of Shree Changdeo Sugar Mills and another v. Union of India and another reported in AIR 2001 SC 557 . 10. Relying upon the aforesaid authorities, Shri Dave contended that the workmen were not entitled to raise industrial dispute in view of the valid settlement inuring between the parties and submitted that when the order of authorities being illegal and without jurisdiction, the same could be challenged at any time and the delay, if any, would not come in the way of the petitioner in challenging the same. In the alternative, Shri Dave for the petitioner submitted that the delay is in fact not said to have been occurred as the pendency of the reference on account of the order of reference causes tremendous hardship in functioning of the company as the workmen have filed various complaints on the basis of the pendency of the reference seeking shelter of the provision of the Industrial Disputes Act, 1947. Therefore, it can be said to have given continuous cause of action for moving the petitions challenging the illegal order of reference. 11. Shri Dave further submitted that the terms of Reference as could be seen from the order impugned dated 23rd February, 2007 would clearly show that it need not reflect the real dispute between the parties and, therefore, on this count also it can well be said that the petition deserves to be allowed and the Court may declare that the workmen were not entitled to raise industrial dispute and therefore the conciliation proceedings were bad in law as well as the order making reference was also required to be quashed and set aside. 12. Shri T.R.Mishra, learned advocate appearing for the respondent workmen contended that the real cause for moving this petition is not that the employer was aggrieved by the order of reference. 12. Shri T.R.Mishra, learned advocate appearing for the respondent workmen contended that the real cause for moving this petition is not that the employer was aggrieved by the order of reference. The order of reference is dated 23.2.2007 and the petition is filed in the year 2009, that itself go to show that the petitioner was in fact not aggrieved by the order of reference. The delay in challenging the order of reference, therefore cannot be said to have properly been explained. Moreover, it is required to be noted that the employer has along been consistent in taking the stand that the demands were not maintainable. There exists no dispute and the reference could not have been made but there is no explanation as to what prevented the employer from approaching the Court at the relevant time when the matter was being referred. In fact it has come out on record in their petition itself that on account of the workmen's filing various complaints as they were terminated during the pendency of the reference without following due procedure of law, the petition is filed so as to scuttle those complaints from their roots. Therefore, this being real reason, Court may not interfere with the pendency of proceedings of the reference at this stage. 13. Shri Mishra learned advocate for the petitioner submitted that there is prejudice to the aforesaid contention that there was no settlement for the period under consideration by the Court as otherwise it would have been reflected in the terms of settlement itself. The terms of settlement did not talk about the period. It is the say of the management that it was strike and it was the say of the workmen that it was a lockout. Therefore, this being the real dispute the same is referred to the Court in terms of the reference which clearly shows that the Court is to adjudicate upon the issue as to whether the workmen were entitled for receiving wages for the period in question and this being real terms of reference, it cannot be said that it does not reflect real lis between the parties assailing the order of reference without jurisdiction. 14. Shri Mishra, learned advocate appearing for the workmen respondent No.4 has relied upon the following authorities and contented that the petition is required to be dismissed with costs.:- 1. 14. Shri Mishra, learned advocate appearing for the workmen respondent No.4 has relied upon the following authorities and contented that the petition is required to be dismissed with costs.:- 1. In the case of Express Newspapers (P.) Ltd. v. The workers reported in AIR 1963 SC 569 . 2. In the case of M.P. Irrigation Karamchari Sangh v. State of M.P. and another reported in 1985 F.J.R(65) S.C. 385. 3. In the case of Philips India, Ltd., and another v. P.N. Thorat, Assistant Commissioner of Labour and Conciliation Officer and others reported in 2006(2) L.L.N. 604. 4. In the case of Managing Director M/s. Hindustan Fasteners (Pvt.) Ltd. v. Nashik Workers Union reported in 2007(114) FLR 471 ; Shri Mishra submitted that assuming for the sake of arguments that the terms of reference required to be explicit so as to reflect the real nature of dispute as canvased by Shri Dave, then also this Court has power to direct the Court below to decide the reference accordingly. On the ground of so-called non-reflection of lis between the parties, the Court may not quash the order of reference otherwise, it would create tremendous hardship upon the workmen and the employer will be successful in his design to scuttle the complaints filed by the workmen for serious breach of the provisions of the Industrial Disputes Act, 1947 during the pendency of the said reference. Prejudice would be caused to the workmen, which can never be compensated in terms of money. In that view of the matter, the Court may not interfere with the proceedings of the reference which is sought to be challenged belatedly and for the evil design on the part of the employer to scuttle the complaints raised. Shri Mishra submitted that the submission of evil design would get support from the fact that the respondent No.3 the original Union which had espoused the cause of the workmen and has now turned around and filed affidavit before this Court in the proceedings of this petition that they have on misconception of facts and law raised industrial dispute. This reflects upon the practice adopted by the petitioner for bringing about the end. Therefore, this may also properly be considered by the Court while considering the petition and challenge thereunder. 15. This Court has heard the learned counsel for the parties and perused the proceedings. This reflects upon the practice adopted by the petitioner for bringing about the end. Therefore, this may also properly be considered by the Court while considering the petition and challenge thereunder. 15. This Court has heard the learned counsel for the parties and perused the proceedings. The following facts, emerging from the record of the case, are required to be noted before adverting the rival contentions of the parties. (1) There was a settlement between the parties since 8.1.2003 and the said settlement envisages that the period of the said settlement was on 1.10.2002 to 20.9.2005. (2) The respondent No.3 Union is now supporting the stand of the employer itself which had given notice of terminating the said settlement on 11.7.2005. (3) The respondent No.3 thereafter raised demand before the petitioner company vide their communication dated 10.8.2005 and the respondent No.3 itself is said to have espoused the cause of the workmen and were responsible for agitation and demonstration as alleged by the petitioner company in the present petition. It is the say of the company before this Court through this petition that the respondent No.3 i.e. the respondent who is now supporting the employer company gave strike notice on 24.11.2005 in which several programmes of demonstration and agitations were mentioned. This assumes greater importance at this stage that the said very Union being respondent No.3 has now turned around and said that the dispute which was raised and which is pending before the Court under reference is misconceived. (4) The respondent No.3 Union only gave a letter to the General Manager of the petitioner company on 3.12.2005 informing the Company that the workmen will go on Fast. The settlement arrived at between the parties which was reduced into writing and signed on 13.3.2006. It is absolutely correct to note that the aid settlement contains clause that the settlement period from 1.10.2005 to 30.9.2008 and during this period, the second party workmen individually or collectively or through Union would not raise any demand which have direct or indirect additional economic burden and if such demand is raised then, the demand would stand revoked by virtue of this settlement. The facts remain be noted that the entire settlement is silent with regard to the treatment of the period for which the wages have been demanded on 29.1.2006 to 10.2.2006 i.e. the period of 13 days in total. The facts remain be noted that the entire settlement is silent with regard to the treatment of the period for which the wages have been demanded on 29.1.2006 to 10.2.2006 i.e. the period of 13 days in total. (5) Learned counsel for the petitioner also could not point out as to how the said period was to be treated as per the understanding of the workmen and the Management i.e. the parties to the settlement and the settlement is absolutely silent qua the wages for the period. 16. Shri Dave, learned counsel for the petitioner of course attempted to explain the said settlement relying upon the letter dated 12.7.2006 which is reply to the justification in Demand Case No.14 of 2006 that the Union and the Management had mutually agreed to drop the complaints against each other with regard to illegal strike and illegal lockout and assured each other not to take up any proceedings on that basis. This amounted to clear assurance on the part of the Union respondent No.3 not to raise any demand with regard to wages. The Court is unable to accept this submission for the reason that the said paragraph on page 93 of the compilation does not in terms reflect what is said to be canvassed by Shri Dave at the Bar. The paragraph and the language would clearly show that the parties agreed not to drop complaints proceedings which are penal in nature for so-called illegal strike and so-called illegal lockout and that sentence is followed by sentence of assurance of not taking up any proceedings. Meaning thereby, no proceedings of such nature but that cannot be stretched to the effect that the workmen agreed to have given up their claim for wages for that period. 17. The demand for the wages is raised in writing right on 12.3.2006 itself and in the conciliation proceedings also as could be seen from page 92 and 93 the issue was taken up by the management with regard to non-maintainability of the demand. In view of the settlement and aftermath. 18. The respondent State has referred the matter calling upon the Tribunal to decide as to whether the workmen were entitled to receive the wages for that period while referring the same. In view of the settlement and aftermath. 18. The respondent State has referred the matter calling upon the Tribunal to decide as to whether the workmen were entitled to receive the wages for that period while referring the same. It has of course used the word "lockout" but that in itself cannot be said that the Government has called upon the Tribunal to accept it preliminarily that there was lockout and ask the matter to be decided thereafter. This interpretation sought to be canvased would not stand scrutiny of reasons. Therefore, the same is not acceptable. 19. The Management has filed its written reply wherein also the contention is taken with regard to non-maintainability of the demand as well as the non-admissibility of the wages of the terms of settlement and the fact that transpired during the proceedings that the workmen have been now supported by another Union respondent No.4 and in whose favour the respondent No.3 has originally given no objection. The respondent No.4 has made application to the Tribunal for reference in imputing it as party. 20. The Management has in the meantime and during the pendency of the reference brought about the end of the services of 5 workmen. Therefore, these workmen have made complaints in the pending reference that the services have been brought to an end without following due procedure of law and in breach of Section 33 of the I.D. Act. These complaints are pending and they are awaiting final adjudication. At this stage, the Company employer has approached this Court under Article 226 of the Constitution of India for challenging the demand, conciliation proceedings as well as the order of reference. 21. This Court is of the view that the preposition of law that the respondent State has to take into consideration while making reference to the real dispute between the parties and the same shall be reflected in the terms of reference as the Tribunal is bound by the Terms of Reference and it derives its jurisdiction from the terms of reference. Therefore, couching the terms of interference is absolutely important as the jurisdiction of the Tribunal springs therefrom as it is stated here in above. Therefore, there cannot be any dispute on this preposition laid down by Shri Dave that the terms of reference should be couched as to reflect the real dispute between the parties. Therefore, couching the terms of interference is absolutely important as the jurisdiction of the Tribunal springs therefrom as it is stated here in above. Therefore, there cannot be any dispute on this preposition laid down by Shri Dave that the terms of reference should be couched as to reflect the real dispute between the parties. In the instant case, the terms of reference could be summarised as to whether the employees were entitled to the wages for the period 1.10.2002 to 30.9.2005 on account of lockout on the part of the company. The Court has no hesitation in saying that 'Yes' the word 'lockout' has wrongly been worded in the terms of reference but the question framed is reflecting the real lis between the parties, namely, the workmen's entitlement for receiving the wages for the period in question. This being so, reliance placed upon the decision of the Court by Shri Dave would be of no avail at the same time the Court is required to observe that the reliance placed upon is required to be explained as in identical terms the Apex Court has said that the order was not properly made. This being the judgment, in facts of this case, would have, in my view, no applicability so far as this case is concerned as reference is made wherein the Court has said that there is a question to be decided about the entitlement of the workmen to receive wages. Mere reference to lockout out would not compel the Court to accept the factum of lockout as, at this stage, it is appropriate to set out the provisions of Sections 22 and 23 of the Indian Penal Code. 22. Thus, the aforesaid provisions of the I.D. Act would go to show that the question with regard to admissibility of the wages is real question which calls for appropriate adjudication by the competent authority. The State on its own could not have gone into the merits of the matter so far as the submission with regard to the non-maintainability of the demand is concerned. The State on its own could not have gone into the merits of the matter so far as the submission with regard to the non-maintainability of the demand is concerned. This Court is of the view that the same would not really preclude the workmen from raising the demand as it was a case with regard to admissible wages during the period and that cannot be clothed with the provision of clauses reproduced at page 85 so as to cover and include the additional financial burden. The additional financial burden is in fact envisaged in that but that also may not be dealt upon elaborately at this stage as the entire issue is at large before the Court and the Reference i.e. the Tribunal is duty bound to undertake the exercise of examining these facts in the light of the findings that may be adduced before the Court. The petition deserves to be dismissed accordingly. 23. The Court is also persuaded for not interfering with this order at this stage as the delay has caused tremendous prejudice to the workmen and the fact remains that the petitioner company has accepted the jurisdiction of the Court and has elaborately raised the stand before the Court and in view of this, interference with the reference at this stage would not be called for and from that angle also the petition deserves to be dismissed. Therefore, the same is dismissed. No order as to costs. Notice discharged. Petition dismissed.