Research › Search › Judgment

Gujarat High Court · body

2010 DIGILAW 493 (GUJ)

Hema Chemicals Industries v. Ramkailas Saroj

2010-10-07

M.R.SHAH

body2010
JUDGMENT : M.R. Shah, J. 1. By way of this petition under Articles 226 and 227 of the Constitution of India the Petitioner management has prayed for an appropriate writ, order or direction quashing and setting aside the impugned order dated April 10, 2000 passed below Exhibit 7 by the Industrial Tribunal, Vadodara in Permission Application No. 20/1999 in Reference (I.T.) No. 108/1996 seeking approval to terminate the services of the Respondent as required u/s 33(3)(b) of the Industrial Disputes Act. 2. As during pendency of Reference (I.T.) No. 108/1996 service of the Respondent were sought to be terminated and in fact an order came to be passed to terminate the service subject to the permission to be obtained from the Industrial Tribunal, the Petitioner submitted an application u/s 33(3)(b) of the Industrial Disputes Act seeking permission to terminate the service of the Respondent and to implement the order of dismissal dated June 11, 1999. It appears that the Petitioner wanted to withdraw Permission Application No. 20/1999 and, therefore, an application below Exhibit 7 was submitted before the Industrial Tribunal permitting the Petitioner to withdraw the Permission Application, which came to be rejected by the Industrial Tribunal vide impugned order dated April 10, 2000 directing that the Permission Application shall be decided on its own merits. Being aggrieved and dissatisfied with the same the Petitioner has preferred the present Special Civil Application under Articles 226 and 227 of the Constitution of India. 3. Shri Vimal Patel, learned advocate appearing on behalf of the Petitioner has vehemently submitted that as such it is the right and prerogative of the Petitioner to withdraw the Permission Application at any time subject to the risk of withdrawing the Permission Application and the necessary consequences, which may follow on the basis of the order of termination. It is further submitted that suppose the Permission Application is not submitted at all and the service of the Respondent is terminated, in that case, necessary consequences of not following the procedure as required u/s 33(3)(b) of the Industrial Disputes Act may follow. It is submitted that merely because the Petitioner submitted an application u/s 33(3)(b) of the Industrial Disputes Act and subsequently the Petitioner wants withdraw the Permission-Application the Industrial Tribunal ought to have permitted the Petitioner to withdraw the same. 4. It is submitted that merely because the Petitioner submitted an application u/s 33(3)(b) of the Industrial Disputes Act and subsequently the Petitioner wants withdraw the Permission-Application the Industrial Tribunal ought to have permitted the Petitioner to withdraw the same. 4. Shri Raval, learned advocate appearing on behalf of the Respondent has submitted that as the workman was entitled to subsistence allowance from the date of Permission Application and/or during pendency of the Permission Application the right is in their favour to receive subsistence allowance and, therefore, it is requested not to permit the Petitioner to withdraw the Permission Application. Shri Raval, learned advocate appearing on behalf of the Respondent has relied upon the decision of the Hon'ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. Vs. Ram Gopal Sharma and Others, AIR 2002 SC 643 and has submitted that as. held by the Hon'ble Supreme Court not making application u/s 33(2)(b) for approval, the order of discharge or punishment, by dismissal or otherwise, of workman during pendency of industrial dispute proceedings, withdraws it are clear case of contravention of statutory requirement and, therefore, it is submitted that even if the Petitioner is permitted to withdraw the permission application u/s 33(2)(b) of the Industrial Disputes Act the same would have effect of contravening the statutory requirement. 5. Having heard Shri Vimal Patel, learned advocate appearing on behalf of the Petitioner and considering the impugned order and considering the facts and circumstances narrated hereinabove, it appears to the Court that the Industrial Tribunal has materially erred in not permitting the Petitioner to withdraw the Permission Application submitted u/s 33(3)(b) of the Industrial Disputes Act. Whatever consequences shall follow on terminating the service of the Respondent during pendency of Reference (I.T.) No. 108/1996, which may follow on non-compliance of Section 33 of the Industrial Disputes Act, the Petitioner is ready to face the consequences and the risk. However, when the Petitioner is ready to face such a risk and consequences, the Industrial Tribunal ought to have permitted the Petitioner to withdraw the Permission Application. However, when the Petitioner is ready to face such a risk and consequences, the Industrial Tribunal ought to have permitted the Petitioner to withdraw the Permission Application. Take a case in which an employer has not approached the Industrial Tribunal for permission u/s 33(3)(b) of the Industrial Disputes Act and terminates the services of the employee during pendency of the Reference and/or dispute before the Industrial Tribunal and/or Labour Court, in that case, such an action of termination during pendency of the Reference can be challenged by the Respondent-workman. In the present case merely because the Petitioner submitted Permission Application seeking permission to terminate the service of the Respondent during pendency of the Reference and when subsequently the Petitioner wants to withdraw. the said Permission Application with whatever risk that may follow in appropriate proceedings to be initiated by the workman challenging his termination on the ground that the same is in breach of Section 33 of the Industrial Disputes Act and/or on the ground that the Tribunal ought not to have permitted the Petitioner to withdraw the Permission Application and/or on the ground that the Respondent might have some right of subsistence allowance etc. on that ground the prayer of the Petitioner to withdraw the Permission Application cannot be rejected. As stated hereinabove, what would have been the position in case where the Petitioner had not submitted Permission Application at all and terminated the services of the workman during pendency of the Reference. 6. Now so far as the reliance placed upon the Hon'ble Supreme Court in the case of Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. v. Ram Gopal Sharma and Ors. (supra) is concerned, as stated hereinabove, whatever be the consequences of withdrawal of Permission Application the same shall follow and it is the Petitioner, who is taking the risk of such consequences. The aforesaid decision of the Hon'ble Supreme Court can be relied upon by the Respondent at appropriate stage. However, the Petitioner cannot be restrained from withdrawing the Permission Application, which it wants to withdraw unconditionally. 7. The aforesaid decision of the Hon'ble Supreme Court can be relied upon by the Respondent at appropriate stage. However, the Petitioner cannot be restrained from withdrawing the Permission Application, which it wants to withdraw unconditionally. 7. In view of the above and for the reasons stated hereinabove, the present petition succeeds and the impugned order passed by the Industrial Tribunal, Vadodara below Exhibit 7 dated April 10, 2000 in Permission Application 20/1999 in Reference (I.T.) No. 108/1996 subject to the consequences that may follow on terminating the service of the Respondent during pendency of the service, which may follow u/s 33 of the Industrial Disputes Act and without prejudice to the rights and contention of the workman challenging the order of termination/action of the Petitioner terminating the service of the Respondent during pendency of Reference (I.T.) No. 108/1996 is hereby quashed and set aside. Rule is made absolute to the aforesaid extent. No cost.