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2014 DIGILAW 516 (GUJ)

Arunbhai Ratilal Rathod v. Assistant Labour Commissioner

2014-04-11

K.J.THAKER, V.M.SAHAI

body2014
JUDGMENT : K.J. Thaker, J. Since, all the matters involve similar issue of law as well as the facts, they are heard together and disposed of by this common judgment. 2. The Letters Patent Appeals are directed against the common judgment and order of the learned Single Judge, Dated : 29.01.2013, rendered in Special Civil Application No. 17920 of 2005 and the allied matters, wherein, the challenge was to the order of the learned Conciliation Officer and Assistant Labour Commissioner, Navsari (for short, ‘the Tribunal’), Dated : 04.04.2005, rendered in Reference Case Nos. 247 to 337 of 2004. 3. Letters Patent Appeal No. 349 of 2013 is preferred by the appellant-original petitioner No. 1, challenging the order of the learned Single Judge to the extent it directs the competent authority to reconsider the matter afresh qua the said appellant. 4. Letters Patent Appeal No. 350 to 435 of 2013 are filed by the appellants-workmen, who, according to them, were under the bona fide impression that S.C.A. No. 17920 of 2005 was filed on behalf of all the workmen and who were permitted by the learned Single Judge to be joined as petitioners by filing one page petitions after about eight years, i.e. in the year 2013, challenging the order of the learned Single Judge to the extent it dismissed their petitions on the ground of delay. 5. Letters Patent Appeal No.1380 of 2013 is filed by original Respondent No. 3, who was permitted to be joined as party Respondent No. 3 in the main matter vide order of the learned Single Judge dated 17.02.2006, whereas, Letters Patent Appeal No. 637 of 2013 is filed by original Respondent No. 2, the Valsad Jilla Sahakari Dudh Uttpadak Sangh, challenging the order of the learned Single Judge to the extent it directs Respondent No. 1 to consider the matter afresh qua original petitioner No. 1. 6. The brief facts giving rise to the present LPAs as well as the Civil Applications are that the services of the appellants-workmen in LPA Nos. 349 of 2005 and 350 to 435 of 2013, who were working with Respondent No. 2, came to be terminated somewhere in the year 2004. Hence, the workmen raised an industrial dispute by filing different Reference Cases. 349 of 2005 and 350 to 435 of 2013, who were working with Respondent No. 2, came to be terminated somewhere in the year 2004. Hence, the workmen raised an industrial dispute by filing different Reference Cases. According to workmen, they are employees of Respondent No. 2, and therefore, termination of their services by Respondent No. 2 without following due procedure of law, is illegal, arbitrary and unjust. On the other hand, the case of Respondent No. 2 before the Industrial Tribunal was that the workmen were engaged by it through one Contractor, namely Loyal Industries Services Limited, and that their services were terminated by the said Contractor and not by them. Hence, the workmen made applications dated 28.01.2005 and 11.03.2005 before the Tribunal to permit them to join Loyal Industries Services Limited as the opponent, which came to be allowed by the Tribunal and Loyal Industries Services Limited came to be joined as Opponent No. 2. The case of opponent No. 2 before the Tribunal was that its contract with Respondent No.1 has come to an end, and therefore, he had paid all legal dues to the workmen, viz. gratuity, retrenchment compensation, notice pay etc., which was duly accepted by them without any protest. The aforesaid aspect is not disputed by the appellants-workmen, and hence, the Tribunal come to the conclusion that the appellants-workmen were the employees of Opponent No. 2 and that there was no ‘Master’ and ‘Servant’ relationship between the workmen on one hand and Opponent No.1-Dairy on the other hand and refused to refer the dispute raised by the workmen to the competent Forum, as provided under Section 10(1) of the Industrial Disputes Act, 1947 (‘the ID Act’, for short). Being aggrieved thereby, the original petitioner No. 1, approached this Court by filing Special Civil Application No. 17920 of 2005. It appears that somewhere in the year 2013, during the course of final arguments before the learned Single Judge, an objection was taken by the respondents that since the petition was filed on behalf of only one petitioner and challenge in the prayer clause was also restricted to the order passed in only one Reference Case, the matter cannot be considered in respect of the other employees, who were not before this Court. Hence, the learned Advocate for the workmen sought permission of the Court and filed one page petitions in respect of the remaining workmen and that is how the appellants in LPA Nos. 350 to 435 of 2013 came to be joined as the petitioners before the learned Single Judge. The learned Single Judge, then, heard all the parties and passed the impugned judgment and order dated 29.01.2013. Hence, the present appeals. 7. Mr. Chaudhari, learned Advocate for the appellants-workmen, reiterated the submissions made by him before the learned Single Judge. He submitted that the original Reference Cases were filed before the Tribunal by all the workmen and as such all the workmen are similarly situated persons. He, further, submitted that when SCA No. 17920 of 2005 was filed, the appellants-workmen in LPA Nos. 350 to 435 of 2013 were under a bona fide impression that the same was filed as a consolidated petition on behalf of all the workmen and that the order of the Tribunal could be challenged by filing even a single petition, and hence, the learned Single Judge rightly permitted them to be joined as petitioners by allowing them to file one page petitions. He, therefore, submitted that in above view of the matter, the learned Single Judge ought not to have dismissed the subsequent petitions filed by the remaining workmen, who were similarly situated persons and were the applicants before the Tribunal, on the ground of delay. He also submitted that even otherwise in view of the fact that the matter would require examination of facts and recording of evidence, including oral evidence, the learned Single Judge ought to have directed Respondent No.1 to refer the matter to the appropriate forum, instead of directing him to decide the matter afresh. 8. In support of his submissions, Mr. Chaudhari placed reliance on the following decisions of the Apex Court; (1) “Telco Convoy Drivers Mazdoor Sangh and anr. 8. In support of his submissions, Mr. Chaudhari placed reliance on the following decisions of the Apex Court; (1) “Telco Convoy Drivers Mazdoor Sangh and anr. v. State of Bihar and Ors.”, AIR 1989 SC 1565 [Civil Appeal No. 2534 of 1989, Dated : 28.04.1989]; (2) “Workers of Rohtas Industries Ltd. v. Rohtas Industries Ltd.”, CWP No. 5222/1985 with WP No.443, 754/1988, 24.10.1989; (3) “Dhanbad Colliery Karamchari Sangh v. Union of India and Ors.”, CA No. (sic)/1991 (arising out of SLP(c) No. 5295/1990), 20.02.1991; (4) “Ajaib Singh v. The Sirhind Cooperative Marketing-Cum-Processing Service Society Ltd. and anr.”, 1999 LLR 529; (5) “Sapan Kumar Pandit v. U.P. State Electricity Board”, 2001 LLR 900; (6) “Mahatma Phule Agricultural University and Ors. v. Nasik Zilla Sheth Kamgar Union and Ors.”, LLR 2001 904; (7) “Sardar Amarjit Singh Kalra (Dead) By Lrs. and Ors. v. Pramod Gupta (Smt.) (Dead) By Lrs. and Ors.”, (2003) 3 SCC 272 ; 9. Over and above the decisions of the Apex Court, Mr. Chaudhari also placed reliance on the following decisions of the other High Courts of India; (8) “Prema Govinda v. Karnataka Small Scale Industries Association, Bangalore”, (W.P. No. 12998 of 2006, Dated : 13.04.2007; (9) “Shaik Kaisar and Ors. v. Forbes Gokak Ltd. and Ors.”, LPA No. 31 of 2007, Dated 02.08.2007; (10) “Manmatha Kumar Jena and Ors. v. Union of India and Ors.”, 2010-II-LLJ- 254(Cal)[MAT No. 120/2008, Dated : 31.07.2009]; (11) “Thakor Nagjibhai Bhailal v. IPCL Now Amalgamated with Reliance Ind. Ltd. and Ors.”, 2011-II-LLJ-182(Guj)[LPA 418/09, 23.08.2010]; (12) “The Secretary, Assam Tea Workers’ Union v. Baghjan Tea Estate and Ors.”, WA No. 271/10, Dated : 03.05.2012; 10. Mr. Chaudhari, in view of the above submissions and the ratio laid down by the Apex Court as well as the different High Courts in the above cited decisions, prayed that the appeals filed by the workmen be allowed. 11. On the other hand, Mr. Shah and Mr. Sharma, learned AGPs, have supported the order passed by Respondent No.1 and submitted that, since, the appellants-workmen failed to produced any material before the Tribunal to show that there exists a ‘Master’ and ‘Servant’ relationship between them and Respondent No. 2, Respondent No. 1 was justified in not referring the matter to the appropriate Forum. 12. Mr. Patel, learned Sr. Advocate with Mr. 12. Mr. Patel, learned Sr. Advocate with Mr. Thakkar, learned Advocate for Respondent No. 2, strongly opposed the appeals and submitted that Respondent No. 2 had entered into an agreement with Respondent No.3 for the supply of labourers for various production activities being carried out by it. Mr. Patel submitted that the aforesaid agreement entered into between Respondent No. 2 and Respondent No.3 and the same came to an end on 18.09.2004. Mr. Patel reiterated that, since, the appellants-workmen were engaged through Respondent No. 3, i.e. the contractor, once the contract expired on 18.09.2004, the services of the appellants-employee automatically came to an end, and hence, the learned Single Judge ought to have dismissed the petition filed by the original petitioner-workman summarily and ought not to have remanded it for consideration afresh. 13. In support of his submissions, Mr. Patel placed reliance on the following decisions, over and above the decisions cited by him before the learned Single Judge, and prayed that the appeals filed by the appellants-workmen be dismissed; (1) “Bhagwan Sahai Todwal v. State of Rajasthan and Ors.”, (2010) 15 SCC 749; (2) “Heinz India Private Limited and anr. v. State of Uttar Pradesh and Ors.”, (2012) 5 SCC 443 ; 14. Mr. Joshi, learned Advocate for Respondent No. 3, i.e. the contractor through whom Respondent No. 2 had engaged the appellants-workmen, submitted that the appellants-workmen did not, initially, join Respondent No.3 as a party before the Tribunal and it is only at the time when Respondent No. 2 raised a contention that the workmen were engaged through Respondent No. 3, the workmen made applications before the Tribunal to permit them to join Respondent No. 3 as Original Opponent No. 2. Mr. Joshi, then, submitted that at the time of filing of the writ petition also, Respondent No.3 was not made a party and he was joined as a party Respondent subsequently vide order of the learned Single Judge dated 17.02.2006. Mr. Joshi, further, submitted that Respondent No.3 had already paid legal dues to all the workmen, which were accepted by them without any protest, and thus, Respondent No.3 is wrongly dragged into the litigation, and hence, the appeals of the appellants-workmen be dismissed. 15. We have heard learned Counsels for the parties and perused the material on record as well as the order of the learned Tribunal and the learned Single Judge. 15. We have heard learned Counsels for the parties and perused the material on record as well as the order of the learned Tribunal and the learned Single Judge. Having undertaken the aforesaid exercise, the first aspect which emerges is that before the Tribunal separate Reference Cases were filed by each workmen, raising a dispute against their so called illegal termination from service. Even, the title of the impugned order of the Tribunal shows that it was passed not in a single consolidated or common application, but, it was passed in different applications viz., Reference Case Nos. 247 to 337 of 2004. We are, therefore, unable to accept the submission of the learned Advocate for the appellants-workman, Mr. Chaudhari, that the appellants-workmen, who were permitted to be joined as the petitioners by filing one page petitions, were under the impression that the main matter was filed jointly on behalf of all the workmen or that the order of the Tribunal could be challenged by filing singe writ petition. Had same been the case, the appellants-workmen would have filed only single reference case and they would not have filed separate application individually. The aforesaid aspect becomes, further, clear from a perusal of the prayer clause, Para-7(A), of the main matter, i.e. SCA No.17920 of 2005, which reads as under; “(1) Your Lordships be pleased to issue a appropriate writ, order or direction quashing and setting aside the impugned order dtd. 04.04.2005 passed by the respondent no.1 in pursuance of demand raised in ID 10(1) Reference No. 247/2004 as being illegal, arbitrary and violative of Article 14, 16 and 226 of the Constitution of India and further Your Lordships be pleased to direct the respondent no. 1 authority to refer the dispute raised by the petitioner to appropriate authority.” 16. Thus, from the above it becomes amply clear that the challenge in the main matter was restricted to the order passed in Reference Case No. 247/2004 only and it nowhere suggests that it was a consolidated petition on behalf of the rest of the employees. 1 authority to refer the dispute raised by the petitioner to appropriate authority.” 16. Thus, from the above it becomes amply clear that the challenge in the main matter was restricted to the order passed in Reference Case No. 247/2004 only and it nowhere suggests that it was a consolidated petition on behalf of the rest of the employees. We, hence, find no fault with the findings arrived at by the learned Single Judge that the appellants-workmen sat tight over the matter and did not do anything for about seven years and it is only at the time of final hearing of the main matter that they came up before the learned Single Judge with a case that they were under the impression that the main matter was filed on behalf of all the workmen. Beside that the appellants-workmen in LPA Nos. 350 to 435 of 2013 have offered no explanation for such a long delay caused in approaching this Court. It may be noted that the appellants-workmen made the application before Respondent No. 1 under Section 2A of the Industrial Disputes Act, 1947 (for short, ‘the Act’). Section 2A of the Act, reads as under; “2A. Dismissal, etc., of an individual workman to be deemed to be an industrial dispute.-(1) Where any employer discharges, dismisses, retrenches or otherwise terminates the services of an individual workman, any dispute or difference between that workman and his employer connected with, or arising out of, such discharge, dismissal, retrenchment or termination shall be deemed to be an industrial dispute notwithstanding that no other workman nor any union of workmen is a party to the dispute. 17. From a perusal of the above provisions, it becomes clear that in case of termination, dismissal or retrenchment of a workman by an employer, single workman can also raise a dispute and non-joining of other workmen or union would not prejudice his case in any manner. The fact that reference cases were filed before the Tribunal under Section 2A of the Act, leaves no manner of doubt that each workman was following the remedy available to him under the law independently and individually and there is no evidence to show that they were collectively challenging their termination or that they were fighting for a common cause. We, therefore, reject the argument of Mr. Chaudhary that the appellants-workmen in LPA Nos. We, therefore, reject the argument of Mr. Chaudhary that the appellants-workmen in LPA Nos. 350 to 435 of 2013 were under impression that the main petition was filed on behalf of all the workmen or that the order of the Tribunal can be challenged by filing a writ-petition in respect of a particular Reference Case. In view of the above factual scenario, the decisions relied on by the learned Advocate, Mr. Chaudhari, would not help the cause of the appellants-workmen in LPA Nos. 350 to 435 of 2013 and same deserve to be dismissed. 18. Insofar as the main matter is concerned, it is no doubt true that the appellant-workman, therein, had immediately approached this Court, assailing the order of the Tribunal. Para-3.1 of the writ-petition filed by the original petitioner-workman reads as under; “3.1 The petitioner respectfully submits that the petitioner was working as helper in packing department under the respondent No. 2 herein. The petitioner submits that the petitioner was appointed on 16.05.2003 and was terminated on 18.09.2004 without any justifiable and without giving notice or notice-pay or without following any legal procedure. The petitioner submits that the petitioner therefore raised demand for reinstatement with back-wages and sent to respondent no.1 an application vide application dtd. 02.11.2004. Annexed hereto and Marked as Annexure ‘B’ to this petition is the copy of the demand.” 19. On a perusal of the above paragraph, two aspects emerge; (1) the original petitioner-workman has, though, stated in the second line of the very paragraph that he was working with packing department of Respondent No. 2, in the very next line he has simply stated that he was appointed on 16.05.2004 and came to be terminated on 18.09.2004 without being paid any legal dues, however, he very cleverly does not state as to who appointed him and as to who terminated his services; (2) the petitioner has produced a copy of the demand application made by him before the Tribunal, but, he has not produced his appointment letter or any other document in support of his case that he was a direct employee of Respondent No. 2. As against this, Respondent No. 2, in order to show that all the appellants-workmen including the original petitioner were employed through Respondent No.3, has produced a copy of the agreement entered into by it with Respondent No.3. As against this, Respondent No. 2, in order to show that all the appellants-workmen including the original petitioner were employed through Respondent No.3, has produced a copy of the agreement entered into by it with Respondent No.3. The Stamp on which the said agreement is executed appears to be purchased on 05.05.2004, whereas, the agreement for supplying labourers appears to be entered into between Respondent No.3 and Respondent No. 2 on 06.05.2004. Further, a letter dated 20.09.2004 written in vernacular language by Respondent No.3 to Respondent No. 2 is produced as Annexure-II to the main petition. In the said letter, Respondent No. 3 has stated in no unclear terms that in pursuance of the Notice issued by them, they have ceased supplying labourers to Respondent No. 2 and that they have terminated the services of their workmen. In the second paragraph of the very same letter, it is, further, stated that the statement showing the date of entry of workmen into service, the amount of gratuity they are entitled to received etc. has been sent with the said letter. It is also specified therein that the amounts shown in the said Statement have been paid to the concerned workman by issuing cheque in the name of individual workman, Dated : 20.09.2004, drawn on Bank of Baorda, Aalipore, and the same had been sent through R.P.A.D. to the concerned workman. It is neither the case of the appellants-workmen including the original petitioner-workman that they have not received any amount nor that the amount received by them was under protest or that the same was not towards their legal outstanding dues for the services rendered by them in the past. On the contrary, the appellants-workmen are totally silent over this aspect. Thus, we do not find that Tribunal committed any error in coming to the conclusion that the appellants-workmen were, in fact, engaged by Respondent No. 2 through Respondent No. 3-the Contractor and that the workmen being employees of the Contractor, their services had come to an end, on expiry of the contract and that the same was done after following due procedure of law, i.e. after paying the workmen gratuity, notice pay, retrenchment compensation etc.. Thus, the say of Respondent No. 2 that the workmen were engaged through Respondent No. 3 gets support from the documentary evidences, as well. However, the appellants-workmen have observed total silent over this aspect. Thus, the say of Respondent No. 2 that the workmen were engaged through Respondent No. 3 gets support from the documentary evidences, as well. However, the appellants-workmen have observed total silent over this aspect. Here, it is pertinent to note that even the Tribunal had also directed the appellants-workmen to produce the details of cheques received by them, the order terminating their services etc., but, same was never produced by the appellants-workmen, and therefore, the Tribunal has observed that even it is not the case of the workmen that they have not been paid their legal dues. It is a well-settled principle of law that the one, who comes before the Court with the clean hands, only is entitled to get reliefs from it. In the case on hand, the appellants-workmen including the original-petitioner, firstly, appears to have accepted the benefits available to them on termination of their services without protest, and thereafter, they filed separate references case raising industrial dispute. In other words, the appellants-workmen appear to be trying to get best of both the worlds by mis-representing before the Tribunal as well as before this Court, which cannot be permitted. Since, the original petitioner-workmen did not produce the necessary documents before the Tribunal, though he was ordered to do so, and thereby tried to misled the Tribunal, we are of the view that the learned Single Judge ought not to have directed Respondent No.1 to reconsider the case of the original petitioner-workman and the same deserves to be dismissed. In view of the above discussion, all the appeals filed by the appellants-workmen fail and are Dismissed. 20. Since, we are dismissing the appeals filed by the appellants-workmen, we accept the submissions of Mr. Patel, learned Sr. Advocate for Respondent No. 2, and the decisions relied on by him and consequently the appeal preferred by Respondent No. 2-Dairy stands ALLOWED. 21. Since, the appeal filed by Respondent No. 2 is allowed, there is no need to pass any order on the appeal filed by Respondent No.3 and same stands Disposed of, accordingly. No order as to costs. Appeals dismissed.