Research › Search › Judgment

Rajasthan High Court · body

2010 DIGILAW 1546 (RAJ)

Satya Narain Vaishnav v. R. S. R. T. C.

2010-08-26

VINEET KOTHARI

body2010
Hon'ble KOTHARI, J.—Heard learned counsel for the parties. 2. All these three writ petitions are being decided by this common order, however, the facts of the leading case of CW No. 6040/2006 - Satya Narain Vaishnav & Ors. vs. RSRTC & Ors. are noted for ready reference. 3. These 11 petitioners have filed this joint writ petition being aggrieved by their termination of their services/work, which was effected by the respondent-Corporation, RSRTC during the pendency of industrial dispute before the learned Labour Court, Bhilwara in Labour Dispute Case No. 14/2001. The petitioners were working with the respondent-Corporation on job work basis for repair of buses of the Corporation from 1996-97 with effect from different dates given Schedule-`A' annexed to the writ petition. It is the case of the petitioners that on account of Annex-1 order dated 28.9.2003 issued by the Chief Manager of RSRTC, Bus Depot- Chittorgarh not to undertake the repair works of the buses on job work basis with effect from 1.10.2003, the said work/service of the petitioner was discontinued with effect from 30.11.2003. 4. The petitioners have approached this Court on the ground that their industrial dispute in the form of Industrial Dispute Case No. 14/2001 (Satya Narain Vaishnav & Ors. vs. Chief Manager, RSRTC Chittorgarh & Ors.) was pending since the year 2001 before the Labour Court, Bhilwara; and the said industrial dispute was decided by the learned Industrial Tribunal later on vide award Annex-4 dated 1.6.2006. Therefore, during pendency of this industrial dispute before the said Industrial Tribunal, the aforesaid termination for work/service of the present petitioners came to be effected by virtue of impugned order Annex.1 dated 28.9.2003 w.e.f. 30.11.2003; and this was void action on the part of the respondent- Corporation as hit by Section 33 of the Industrial Disputes Act, 1947 (for short, hereinafter referred to as `Act of 1947'), which prohibits change in service condition of workmen during the pendency of such dispute before the competent forum provided under the said Act including the Labour Court. 5. Learned counsel for the petitioners, Mr. 5. Learned counsel for the petitioners, Mr. R.S. Saluja relying upon the provisions of Section 33 of the Act of 1947 and following decision of the Apex Court [Details given herein below], urged that said termination from the work/service of the present petitioners is void and, therefore, notwithstanding the availability of the alternative remedy to the petitioners; present petitioners are entitled to relief in the present writ petitions since the impugned action of the respondents is void being hit by statutory provisions of Section 33 of the Act of 1947. The judgments/authorities relied upon by the learned counsel for the petitioners are: 1. AIR 1974 SC 37 - Silver Jubilee Tailoring House & Ors. vs. Chief Inspector of Shops & Establishment & Anr. 2. AIR 2002 SC 643 (1) - Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. vs. Shri Ram Gopal Sharma & Ors. 3. (2009) 15 SCC 335 - Gujarat Agricultural University vs. All Gujarat Kamdar Karmachari Union. 4. 2009(1) SCC (L & S) 55- Divisional Manager, New India Insurance Company Ltd. vs. Sanker Lingam. 6. On the other hand, Mr. P.K. Lohra, learned counsel for the respondent-RSRTC vehemently submitted that there is no relationship of Employer and Employee between the respondents and present petitioners and they cannot be said to be workmen working in the establishment of the respondent-Corporation. Therefore, the question of applying the statutory provisions of Section 33 of the Act of 1947 in the facts and circumstances of the case does not arise. He further submitted that even the award dated 1.6.2006 passed by learned Tribunal in Dispute Case No. 14/2001 has been challenged by the respondent-Corporation by way of separate writ petition being SBCWP No. 2795/2007. He also vehemently submitted that the petitioners not only had an alternative remedy available to them against the alleged termination of work/service under Section 33-A of the Act of 1947 but in fact they did so avail such alternative remedy by filing a separate industrial dispute through their Union before the learned Industrial Tribunal, Jaipur itself, which was however withdrawn by the petitioners on the objections raised by the respondent-Corporation that such a dispute was not maintainable and that Labour Dispute Case No. 41/2004 (Rajasthan Rajya Path Parivahan Nigam Shoshit Karyashala Karmchari Sangh vs. RSRTC) was withdrawn by the present petitioners from the said Industrial Tribunal, Jaipur. 7. 7. Learned counsel for the respondents also urged that there is gross delay on the part of the petitioners in approaching this Court against the alleged termination with effect from 30.11.2003 as the writ petitions have been filed by the petitioners in this Court in the year 2006 on 4.6.2006 and this gross delay of three years has not been even explained by the petitioners. Therefore, the writ petitions deserves to be dismissed on the ground of delay and latches. In support of his contentions, learned counsel for the respondents relied upon the following judgments. 1. (1996) 6 SCC 445 - [Paras 6, 7 and 10] 2. (1969) 1 SCC 110 - [Paras 10, 12, 39 to 41, 65 and 66] 3. (1969) 1 SCC 185 - [Paras 4 and 7] 4. (1992) 3 SCC 136 - [Paras 7 and 8] 5. 1991 Suppl. (2) SCC 183 - [Paras 11 and 16] 6. (2007) 2 SCC 725 - [Para 40] 7. (1989) 2 SCC 356 - [Paras 8, 10 & 11] 8. (1998) 4 SCC 100 - [Para No. 9] 9. (2000) 2 SCC 48 - [Paras 8 and 14] 10. (1982) 1 SCC 379 - Para No. 30] 11. 1995 (2) WLC (Raj.) 1 [Paras 11, 14, 18, 39 & 40] 12. (2004) 4 SCC 268 - [Paras 11, 12, 14, 15 & 17] 13. (2005) 8 SCC 264 - [Paras 20 and 21] 14. (2007) 2 SCC 112 - [Paras 44 to 46] 15. AIR 1961 SC 1506 -[Paras 11 and 15] 16. AIR 1964 SC 1095 [Paras 11] 17. AIR 1970 SC 645 - [Paras 4 & 5] 18. (1983) 2 SCC 433 - [Paras 6 & 11] 19. (2001) 6 SCC 634 - [Paras 7] 20. (2005) 7 SCC 492 - [Paras 8, 9 and 10] 21. (1977) 2 SCC 494 [Paras 4] 8. Having heard learned counsel for the parties at length and after going through the record of the case, relevant documents and judgment (s) cited at bar, this Court is inclined to allow this writ petition [SBCWP No. 5040/2006- Satya Narain Vaishnav & Ors. vs. RSRTC & Ors.] for the following reasons: 9. (1977) 2 SCC 494 [Paras 4] 8. Having heard learned counsel for the parties at length and after going through the record of the case, relevant documents and judgment (s) cited at bar, this Court is inclined to allow this writ petition [SBCWP No. 5040/2006- Satya Narain Vaishnav & Ors. vs. RSRTC & Ors.] for the following reasons: 9. Section 33 of the Act of 1947, which is reproduced hereunder, clearly stipulates that during pendency of any proceedings before the competent forum, no employer shall alter the conditions of service prejudicial to the workmen concerned with such dispute, during the pendency of such dispute. "33. Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings- (1) During the pendency of any conciliation proceedings before a conciliation officer or a Board or of any proceedings before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall (a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or (b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workman concerned in such dispute. save with the express permission in writing of the authority before which the proceeding is pending. (2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman]- (a) alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or (b) for any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman; Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the authority before which the proceeding is pending for approval of the action taken by the employer. (3) Notwithstanding anything contained in sub-section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute- (a) by altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or (b) by discharging or punishing whether by dismissal or otherwise, such protected workman, save with the express permission in writing of the authority before which the proceeding is pending." 10. The provisions of Section 33(1), which are obviously of mandatory nature, and exception provided in sub section (2) and sub Section (3) does not apply in the present facts and circumstances of the case because, admittedly the respondent-Corporation has not obtained any permission in writing from the concerned Industrial Tribunal, Bhilwara in this regard for altering the conditions of service. Hon'ble the Supreme Court in the case of Silver Jubilee Tailoring House & Ors. vs. Chief Inspector of Shops & Establishment & Anr., (supra) has held that right to control the manner of work is not the exclusive test for determining the relationship of employer and employee and in that case the tailors working on the stitching machines of the employer on job work basis were held to be "persons employed" under the provisions of Andhra Pradesh (Telangana Area) Shops and Establishment Act, 1951. There is considerable force in the submission made by the learned counsel for the petitioners. In the present case also, the petitioners who used to undertake the repair of the buses of the respondent-Corporation RSRTC did such work only with the help of tools, equipments and other infrastructure provided for this purpose by the respondent-Corporation itself, and they were simply workmen or laborers who provided their manual work for such repair work for a period of five years but of course, were paid on the basis of piece rate basis or job work basis; and they were not paid on monthly basis as the regular employees were paid by the respondent-Corporation. 11. 11. The Hon'ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. (supra) also dealt with the contentions similar to one raised here before this Court by the learned counsel for the respondents about the alternative remedy under Section 33-A of the Act of 1947 to the petitioners and turning down such objection, the Apex Court has observed as under:- "14. Where an application is made under Section 33 (2)(b), Proviso, the authority before which the proceeding is pending for approval of the action taken by the employer has no examine whether the order of dismissal or discharge is bona fide; whether it was by way of victimization or unfair labour practice; whether the conditions contained in the proviso were complied with or not, etc. If the authority refuses to grant approval obviously it follows that the employee continues to be in service as if order of discharge or dismissal never had been passed. The order of dismissal or discharge passed invoking Section 33(2)(b) dismissing or discharging an employee brings an end of relationship of employer and employee from the date of his dismissal or discharge but that order remains incomplete and remains inchoate as it is subject to approval of the authority under the said provisions. In other words, this relationship comes to an end de jure only when the authority grants approval. If approval is not given, nothing more is required to be done by the employee, as it will have to be deemed that the order of discharge or dismissal had never been passed. Consequence of it is that the employee is deemed to have continued in service entitling him to all the benefits available. This being the position there is no need of a separate or specific order for his reinstatement. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33-A challenging, the order granting approval on any of the grounds available to him. But on the other hand, if approval is given by the authority and if the employee is aggrieved by such an approval, he is entitled to make a complaint under Section 33-A challenging, the order granting approval on any of the grounds available to him. Section 33A is available only to an employee and is intended to save his time and trouble inasmuch as he can straightway make a complaint before the very authority where the industrial dispute is already pending between the parties challenging the order of approval instead of making efforts to raise an industrial dispute, get a reference and thereafter adjudication. In this view, it is not correct to say that even though where the order of discharge or dismissal is inoperative for contravention of the mandatory conditions contained in the proviso or where the approval is refused, a workman should still make a complaint under Section 33A and that the order of dismissal or discharge becomes invalid or void only when it is set aside under Section 33A and that till such time he should suffer misery of unemployment in spite of statutory protection given to him by the proviso to Section 33(2)(b). It is not correct to say that where the order of discharge or dismissal becomes inoperative because of contravention of proviso to Section 33(2)(b), Section 33A would be meaningless and futile. The said Section has a definite purpose to service, as already stated above, enabling an employee to make a complaint, if aggrieved by the order of the approval granted. 15. The view that when no application is made or the one made is withdrawn, there is no order of refusal of such application on merit and as such the order of dismissal or discharge does not become void or inoperative unless such and order is et aside under Section 33A, cannot be accepted. In our view, not making an application under Section 33(2)(b) seeking approval or withdrawing an application once made before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b). An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. An employer who does not make an application under Section 33(2)(b) or withdraws the one made, cannot be rewarded by relieving him of the statutory obligation created on him to make such an application. If it is so done, he will be happier or more comfortable than an employer who obeys the command of law and makes an application inviting scrutiny of the authority in the matter of granting approval of the action taken by him. Adherence to and obedience of law should be obvious and necessary in a system governed by rule of law. An employer by design can avoid to make an application after dismissing or discharging an employee or file it and withdraw before any order is passed on it, on its merits, to take a position that such order is not inoperative or void till it is set aside under Section 33A notwithstanding the contravention of Section 33 (2)(b) proviso, driving the employee to have recourse to one or more proceeding by making a complaint under Section 33A or to raise another industrial dispute or to make a complaint under Section 31(1). Such an approach destroys the protection specifically and expressly given to an employee under the said proviso as against possible victimization, unfair labour practice or harassment because of pendency of industrial dispute so that an employee can be saved from hardship of unemployment. 16. Section 31 speaks of penalty in respect of the offences stated therein. This provision is not intended to give any remedy to an aggrieved employee. It is only to punish the offender. The argument that Section 31 provides a remedy to an employee for contravention of Section 33 is unacceptable. Merely, because penal provision is available or a workman has a further remedy under Section 33A to challenge the approval granted, it cannot be said that the order of discharge or dismissal does not become inoperative or invalid unless set aside under Section 33A. There is nothing in Section 31, 33 and 33A to suggest otherwise even reading them together in the context. These sections are intended to serve different purposes. 12. Recently, the Hon'ble Supreme Court in the case of Gujarat Agricultural University vs. All Gujarat Kamdar Karmachari Union. (supra) has again reiterated the position by holding that the foundation for exercise of powers in the proceedings under Section 33 A is a beach of Section 33. These sections are intended to serve different purposes. 12. Recently, the Hon'ble Supreme Court in the case of Gujarat Agricultural University vs. All Gujarat Kamdar Karmachari Union. (supra) has again reiterated the position by holding that the foundation for exercise of powers in the proceedings under Section 33 A is a beach of Section 33. The alleged change in condition of service (a breach under Section 33) by the employer was a matter connected with the pending dispute. The reference of the industrial dispute was for regularization of daily-rated labourers and, therefore, the Court found that there is no merit in the contention of the respondent-employer that since daily rated employees do not hold any post, there are no conditions of service for such employees It is true that the daily wagers are not the holders of a post but the expression "condition of service" occurring in Section 33(1)(a) is not restricted to the holders of post. The expression, "conditions of service" is of wide range and relates to the workmen who may be temporary, ad hoc, daily-rated, permanent, semi-permanent or otherwise. 13. Thus, sweep of the Hon'ble Apex Court's decisions definitely covers the present petitioners before this Court also, who were paid on the basis of job work or piece rate basis. While, it is true that the petitioners were asked to do this repair work only upon certain contingencies and upon change in the policy decision, such work was stopped; none-the-less the fact remains that petitioners were working as workmen in the establishment of the respondent-Corporation. Therefore, mode of payment on the basis of job work basis or piece rate basis would not alter the character of the workmen/industrial relationship between the petitioners and the respondent-Corporation. Therefore, as far as question of applicability of the provisions of Act of 1947 is concerned, it is undeniable that said provisions would definitely apply to he present workmen as well suffice it note here that even in the award dated 1.6.2006, learned Industrial Tribunal itself has returned a finding of fact in para Nos. 12 and 13 of the award that the petitioners were workmen of the respondent-Corporation and in fact they were entitled to be given minimum wages of the pay scale applicable to the Helpers regularly employed by the respondent-Corporation. 12 and 13 of the award that the petitioners were workmen of the respondent-Corporation and in fact they were entitled to be given minimum wages of the pay scale applicable to the Helpers regularly employed by the respondent-Corporation. As far as grant of regular pay scale of Helpers in concerned, learned counsel for the respondents contended that there is no question of grant of regular pay scale itself to the present petitioners. The said contention is bereft of context inasmuch as the learned Industrial Tribunal itself has only directed to give minimum of the pay scale applicable to the Helpers to the present petitioners and Tribunal has not directed to give the regular pay scale itself. 14. As far as the question of payment of minimum wages as per provisions of Minimum Wages Act, 1948 is concerned, there cannot be any dispute that a workman who is being paid on job work basis ought to have been paid such minimum wages. Be that as it may. The present question before this Court is as to whether the termination of service/work of the petitioners altogether in pursuance of the impugned order Annex-1 dated 28.9.203 is itself hit by provisions of Section 33 of the Act of 1947 or not. 15. In the considered opinion of this Court, the answer to the said question is to be in affirmative and in favour of present petitioners. For this answer, the simple parameter is to see whether this amounted to change in the service conditions or not by the employer and whether it took place during the pendency of an industrial dispute before the competent court or not. From the facts narrated above, it is clear that the dispute in the form of Labour Dispute Case No. 14/2001 was pending in the year 2003 when on account of Annex-1 order dated 28.9.2003 directing the concerned Manager of the Depot not to undertake repair works on job work basis, the service/work of the present petitioners came to be discontinued with effect from 30.11.2003; and this admittedly happened during the pendency of this dispute being Labour Dispute No. 14/2001, which ultimately was decided only on 1.6.2006. Once, this Court comes to the conclusion that Section 33 of the Act of 1947 applies in the present case and the impugned action of the respondents also amounts to altering the conditions of service from `job work' to `no work' [Termination], that can certainly be construed as a change in the service conditions prejudicial to the interest of the present petitioners. Therefore, the answer to the aforesaid question should only be in the affirmative and the impugned action of the respondents is hit by Section 33 of the Act of 1947 and is, therefore, void. 16. The contention of the learned counsel for the respondents on the ground of availability of alternative remedy as well as delay and latches in filing the writ petition pales into insignificance, once this Court comes to the conclusion that impugned action terminating the services/work of the petitioners is hit by Section 33 of the Act of 1947, and such action is void and deserves to be quashed and set aside. Firstly, the rule of alternative remedy is always a rule of discretion and is not rule of bar of jurisdiction while dealing with the controversy under Article 226 of the Constitution of India. The plea of alternative remedy raised by the respondents is only with a view to raise the question of forum before the Court and it is certainly within the domain of the respondents to suggest that alternative forum is more appropriate for the petitioners to take. However, that does not in any manner bar the jurisdiction of this Court under Article 226 of the Constitution of India and notwithstanding the availability of such alternative remedy, this Court can always invoke Article 226 of the Constitution of India and grant appropriate relief (s) to the petitioners before it. Secondly, as far as the question of delay and latches is concerned, that objection is also without any substance because firstly the delay per se is not such a gross and huge delay, which cannot be condoned; and secondly, the fact is that the petitioners availed the alternative remedy through their Union by filing another Labour Dispute Case being Case No. 41/2004 before the Industrial Tribunal, Jaipur, which was later on withdrawn by the petitioners on the objection raised by the respondent-RSRTC itself. Therefore, it does not lie with the respondent-RSRTC to now contended that the petitioners should now have avail such alternative remedy. The respondent-Corporation, a public body and State Government within the meaning of Article 12 of the Constitution of India, is not permitted to take such a hopping stand before this Court that before the industrial Tribunal it raised the objection that such dispute case No. 41/2004 was not maintainable there and before this Court it takes a stand that the petitioner should be relegated back to avail the same alternative remedy. Therefore, both the objections raised by the learned counsel for the respondent-Corporation as to maintainability of the present writ petition deserves to be over-ruled and same are accordingly over-ruled. 17. Turning to the relief part in the present writ petition, this Court is of the opinion that Annex.1 order dated 28.9.2003 amounts to change in the service/work conditions by the respondents during the pendency of the industrial dispute in Labour Dispute Case No. 14/2001 before the Industrial Tribunal. Bhilwara, and therefore, that order is void and deserves to be quashed and same is accordingly quashed. The natural consequence of that is that the petitioners have to be restored back to the position, which was obtaining prior to passing of the said order Annex-1 dated 28.9.2003. Accordingly, the S.B. Civil Writ Petition No. 5040/2006 is allowed and impugned Annex. 1 dated 28.9.2003 is quashed and the respondent-RSRTC is directed to restore/reinstate the present petitioners to the position obtaining prior to 28.9.2003 and may provide them employment on the same basis as was being done hitherto prior to 28.9.2003. 18. As far as the question of back wages is concerned, since the present writ petitions are pending in this Court since 2006 and alleged termination of the petitioners have taken place in the year 2003 with effect from 30.11.2003, it is considered appropriate that the respondent-Corporation should pay 50% of the consolidated sum paid to the petitioners during the period which they had worked. 19. 19. For the reasons given aforesaid allowing the writ petition No. 5040/2006 and appropriate relief having been granted to the petitioners, learned counsel for the petitioners does not press the writ petition being SBCWP No. 5420/2006 by which the petitioners have claimed relief for regularization of their services which was not given to them in the award dated 1.6.2006 by the learned Industrial Tribunal and also in view of decision of the Hon'ble Supreme Court in the case of State of Karnataka vs. Uma Devi, reported in 2006(4) SCC 1 , this writ petition cannot be said to have much force and same is accordingly dismissed. 20. As far as the writ petition being SBCWP No. 2795/2007 filed by the RSRTC challenging the award dated 1.6.2006 is concerned, the said writ petition is also devoid of any merit and as already stated above, since the petitioners have to be reinstated and restored back to the position as obtaining prior to passing of Annex-1 order dated 28.9.2003; however, the question of paying any pay scale as applicable to the Helpers to the present petitioners is concerned, the same does not arise and in the facts and circumstances of the case and the Respondent-RSRTC can continue to pay them on work basis/piece rate basis as done prior to the said date, of course, subject to the relevant laws like Minimum Wages Act, 1948. 21. In the result, the S.B. Civil Writ Petition No. 5040/2006- Satya Narain Vaishnav & Ors. vs. RSRTC & Ors. stands allowed. The SBCWP Nos. 5420/2006- Satya Narain Vaishnav & Ors. vs. RSRTC & Ors. and S.B. Civil Writ Petition No. 2795/2007 - RSRTC & Anr. vs. Judge, Industrial Tribunal & Labour Court, Bhilwara & Ors. are dismissed for the reasons stated herein above. No order as to costs.