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2015 DIGILAW 18 (GUJ)

Gujarat Dairy Development Corporation v. Workmen

2015-01-08

R.P.DHOLARIA, V.M.SAHAI

body2015
JUDGMENT R.P. Dholaria, J. 1. This writ petition under Articles 226 and 227 of the Constitution of India has been filed by the present petitioner challenging the award dated 18.12.2012 below Exh. 14 and the order dated 18.8.2003 below Exh. 21 passed in Reference (I.T.) No. 13 of 2001. The industrial dispute was raised by the Abad Dairy (GDDC) Karmachari Mandal raising the following four demands before the learned Industrial Tribunal, Ahmedabad in Reference (I.T.) No. 13 of 2001. "1. The Ahmedabad Municipal Corporation had given new pay scales to its employees from 1.1.96. Whether the permanent employees of the Abad Dairy should be given pay, D.A., HRA, CLA etc. from 1.1.96 in the 5th pay commission, at par with the employees of Ahmedabad Muni. Corporation? 2. The Ahmedabad Municipal Corporation has adopted new pay scale from 1.1.96 and the difference from 1.1.96 to 31.3.98 was found to be proper to be paid by preparing the supplementary bills. Whether the employees of the Abad Dairy should also be paid the differential amount of 5th pay commission on the line of the employees of the Ahmedabad Municipal Corporation from 1.1.96 by preparing the supplementary bills? 3. Whether the permanent employees of the Abad Dairy should be paid amount of LTC for the block years 96-97, 97-98 on the line of the employees of the Ahmedabad Municipal Corporation? The Abad Dairy employees have been given LTC from 1979-1980 to. 1994-95 as per the employees of the Ahmedabad Municipal Corporation; thereafter the LTC for the block years of 1996-97 and 1998-99 has been paid to the employees of the Ahmedabad Municipal Corporation, whereas the GDDC, Ahmedabad has not paid the said LTC as per the policy of the Ahmedabad Municipal Corporation. Whether the same should be paid or not? 4. The Abad Dairy was entrusted by the Ahmedabad Municipal Corporation to the Government of Gujarat and the Govt. of Gujarat had entrusted the said Dairy to the Gujarat Dairy Development Corporation; that as per the Sale Deed the responsibility of the entire employees is that of the Government of Gujarat. Whether the employees of the Abad Dairy should be given job within the Municipal Limit? Whether the permanent employees of the Abad Dairy, who does not accept voluntary retirement scheme) should be given alternative work as per the settlement u/sec. 2(p)?" 2. Whether the employees of the Abad Dairy should be given job within the Municipal Limit? Whether the permanent employees of the Abad Dairy, who does not accept voluntary retirement scheme) should be given alternative work as per the settlement u/sec. 2(p)?" 2. It appears that during the pendency of the dispute under consideration before learned Industrial Tribunal, one purshis was tendered vide Exh. 14 declaring that demand Nos. 1, 2 and 3 are not pressed. Upon the aforesaid purshis and oral submissions, learned Tribunal has made elaborate observations and passed the following order on 18.12.2002. "The demands No. 1, 2 and 3 are hereby disposed of as requiring no adjudication because the same are covered by a settlement. This Reference case shall be proceeded further regarding the 4th (fourth) demand." 3. It appears that, thereafter, General Secretary of the Abad Dairy (GDDC) Karmachari Mandal has tendered one another application vide Exh. 21 wherein it has asked for certain directions in pursuance of the order below Exh. 14. Upon the said application at Exh. 21, learned Industrial Tribunal has passed the detailed order directing the respondent to implement bipartite settlement arrived at on 11.5.1981 and further directed to give all consequential benefits at par with the employees of Ahmedabad Municipal Corporation. 4. Precisely, the aforesaid two orders passed by learned Tribunal have been challenged before us raising the grievance that the aforesaid purshis at Exh. 14 was presented not pressing demand Nos. 1, 2 and 3 since the same are unconditional and unqualified. None of the parties had sought any such direction so far as demand Nos. 1, 2 and 3 are concerned. Still, however, learned Industrial Tribunal, while disposing of the aforesaid purshis, has further observed that because the same are covered by the settlement which creates confusion as regards to the purshis tendered by the parties to the proceedings and subsequent declaration made on 18.8.2003 wherein also, same declaration has been recorded which was not intention of the party who presented the aforesaid purshis for seeking no such direction. The settlement arrived at between the parties to the proceedings as well as those who are not party before learned Industrial Tribunal on 11.5.1981 is the settlement outside the conciliation proceedings. Therefore, learned senior counsel Mr. The settlement arrived at between the parties to the proceedings as well as those who are not party before learned Industrial Tribunal on 11.5.1981 is the settlement outside the conciliation proceedings. Therefore, learned senior counsel Mr. K.M. Patel has argued that the same ought not to have been taken into consideration by learned Industrial Tribunal when the settlement is arrived at outside the conciliation proceedings and whatever observation and declaration made in the nature of directory creates confusion which are beyond the jurisdiction of learned Industrial Tribunal while passing the aforesaid order. 5. Mr. K.M. Patel, learned senior counsel has further argued that purshis at Exh. 14 was simply unconditional and unqualified which does not warrant any such order upon it and learned Industrial Tribunal ought to have merely recorded the aforesaid purshis instead of passing any order upon it. During the course of hearing, it is also pointed out by Mr. Dastoor, learned counsel for the respondent that learned Industrial Tribunal has rendered the decision so far as demand No. 4 is concerned whereby learned Industrial Tribunal was pleased to dismiss demand No. 4. Relevant part of Exh. 14 reads as under. "....The respondent has filed the statement of claim in the aforesaid case on 16.8.2002. As per the averments made in the aforesaid statement of claim, it is stated that they are not pressing demand Nos. 1, 2 and 3 stated in the schedule mentioned in the said reference. Therefore, by this application, the respondent requests the Honorable Tribunal to pass appropriate order in the interest of justice in respect of the said aspect." 6. We have taken into consideration the rival submissions made by learned counsel for the respective parties as well as material available on record. We have also perused the impugned orders passed below Exhs. 14 and 21. In our reading of purshis at Exh. 14 tendered by the respondent before learned Industrial Tribunal, it is in the nature of unconditional and unqualified wherein the respondent has merely declared giving up demand Nos. 1, 2 and 3 and no further relief or direction or declaration was asked for from learned Industrial Tribunal. 7. In view of the aforesaid factual position, when the aforesaid purshis at Exh. 1, 2 and 3 and no further relief or direction or declaration was asked for from learned Industrial Tribunal. 7. In view of the aforesaid factual position, when the aforesaid purshis at Exh. 14 was simple, learned Industrial Tribunal ought to have merely recorded and further proceeded to decide so far as demand No. 4 is concerned without anything observing as regards demand Nos. 1, 2 and 3 which have been given up by the respondent union. Therefore, in our view, learned Industrial Tribunal has erred in making declaration and observation with regard to demand Nos. 1, 2 and 3 in view of previous settlement entered into outside the conciliation proceedings on 11.5.1981. So far as the observations made by learned Industrial Tribunal are concerned, the same are beyond jurisdiction and beyond the purview of the aforesaid purshis at Exh. 14 as well as beyond the purview of adjudication proceedings which was pending before learned Industrial Tribunal which cannot be maintained at law and the same deserves to be quashed and set aside. 8. During the pendency of the writ petition, learned Industrial Tribunal has considered demand No. 4 and vide its order dated 16.7.2012, learned Industrial Tribunal has rejected demand No. 4. Copy of the said order dated 16.7.2012 passed by learned Industrial Tribunal, Ahmedabad is produced on record by Mr. K.M. Patel, learned senior counsel which is ordered to be taken on record. Under the circumstances, we are of the opinion that when previous two orders passed by learned Industrial Tribunal are under challenge before this Court, learned Industrial Tribunal was under the impression that by granting relief qua demand Nos. 1, 2 and 3, justice has been done to the workmen and, therefore, it did not consider demand No. 4 on merits by assigning appropriate reasons. Therefore, interest of justice demands that though relief with regard to the order dated 16.7.2012 has not been made, but under the relief "any other writ or direction", this relief could be covered to do substantial justice between the parties and the Court can always mould the relief. Therefore, the order dated 16.7.2012 made in Reference (I.T.) No. 13 of 2001 also requires to be quashed. Therefore, the order dated 16.7.2012 made in Reference (I.T.) No. 13 of 2001 also requires to be quashed. As we propose to quash all the aforesaid three impugned orders passed in Reference (I.T.) No. 13 of 2001, we remand the matter to learned Industrial Tribunal, Ahmedabad for considering afresh from the stage of filing of purshis at Exh. 14 after affording reasonable opportunity of adducing evidence as well as opportunity of hearing to the respective parties. In the result, the writ petition succeeds and the same is allowed. The award First Part dated 18.12.2002 at Annexure-H to the petition and the order dated 18.8.2003 below Exh. 21 at Annexure-K to the petition as well as final award dated 16.7.2012 passed by learned Industrial Tribunal, Ahmedabad are quashed and set aside. Learned Industrial Tribunal, Ahmedabad is directed to hear afresh Reference (I.T.) No. 13 of 2001 from the stage of filing of purshis at Exh. 14 after affording reasonable opportunity of adducing the evidence as well as hearing the respective parties. It shall be open to the parties to raise all contentions available under the law before learned Industrial Tribunal. Rule is made absolute to the aforesaid extent. The parties shall bear their own costs.