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2017 DIGILAW 1230 (GUJ)

Mazoor Mahajan Sangh v. Bharat Vijay Mills

2017-07-04

K.M.THAKER

body2017
ORDER : K.M THAKER, J. 1. Heard Mr. Vasavada, learned advocate for the petitioner and Mr. Bhatt, learned advocate for the Respondent-workman and Mr. Nanavati, learned advocate for respondent-Company. 2. Elaborate discussion with regard to the contentions raised in the petition is not necessary and the group of petitions can be disposed of in view of the submission by Mr. Vasavada, learned advocate for the petitioner. 3. After taking instruction from Secretary of Union, who is present in the court. Mr. Vasavda, learned advocate for the petitioner submitted that while keeping alive and keeping open all contentions against interim order challenged in this petition including the right to challenge the same interim order (which is challenged in present petition) after final order is passed in Appeal, the union withdraws this petition at this stage. Therefore, as mentioned earlier, elaborate discussion of rival contentions is not necessary. 4. However, before disposing the petition as withdrawn at this stage, it would be proper to take note of certain factual aspects and submissions by Mr. Vasavada, learned advocate for the petitioner-Union and Mr. Bhatt, learned advocate for the workmen. 5. It appears that for the reasons mentioned in the settlement dated 27.07.1999 arrived at between the representative (i.e present petitioner) and the Respondent No. 1 Company, wherein certain posts and persons in Doubling department of Respondent no. 1 came to be reduced. The said action resulted into retrenchment of workmen who tendered resignations in light of and under the said settlement dated 27.07.1999 6. The settlement stipulated that those workmen who are ready and willing to submit resignations which shall be forwarded to the company through representative union (i.e petitioner) will be paid benefits in terms of settlement. 7. According to the case of the petitioner-union, in pursuance of the settlement it received resignations from workmen including the respondents (workmen) in this group of petitions and in light of the settlement the petitioner-union forwarded the said resignations to the company and thereafter the company paid the amounts to those workmen. 8. 7. According to the case of the petitioner-union, in pursuance of the settlement it received resignations from workmen including the respondents (workmen) in this group of petitions and in light of the settlement the petitioner-union forwarded the said resignations to the company and thereafter the company paid the amounts to those workmen. 8. According to the respondent-workmen they had raised several objections including the objection against the amount which the company offered and the condition which Company imposed-which were not in accordance with the settlement and/or law, however, their objections were not considered by the Company and company pressurized them to tender their resignations and to accept the amount which it offered (though it was not in accordance with law or even the settlement). With such allegations, present respondent-workmen filed application under Section-78 read with Section-79 of BIR Act, before the Learned Labour Court. 9. During pendency of the application filed by present respondent (workers), the Company submitted an application with request to the Learned Labour Court to join the representative union as party to the said proceedings. 10. Similar application was not submitted by the workmen and/or by the representative union. 11. The learned Labour Court considered the application filed by the Company and rejected the said application vide order dated 07.01.2004 12. Thereafter, neither company nor any other party nor the union nor the workmen challenged that order. 13. Thus, the order dated 07.01.2012 attained finality. 14. Subsequently, the Learned Labour Court decided the T. application vide judgment dated 14.05.2012 The Learned Labour Court reached to conclusion that the company had acted illegally and termination of workmen was illegal and unjustified. 15. The Learned Labour Court reached to said conclusion mainly on the ground that the company implemented the settlement before it came in operation and became inforceable in accordance with Section-45 of BIR Act. 16. Against the said judgment dated 14.05.2012, Appeals are filed before the Industrial Court and they are pending. 17. During pendency of said Appeals, present petitioner i.e the representative union submitted separate but similar applications with the request that it may be permitted to join the proceeding of Appeals, as representative union. 18. It appears that the workmen opposed the application filed by union (which was taken on record at Exh-8 by the Industrial Court). 19. After hearing the parties, learned Industrial Court rejected said Exh-8 application vide order dated 21.02.2013 20. 18. It appears that the workmen opposed the application filed by union (which was taken on record at Exh-8 by the Industrial Court). 19. After hearing the parties, learned Industrial Court rejected said Exh-8 application vide order dated 21.02.2013 20. Feeling aggrieved by said application, the union filed present petition. 21. The union challenged the decision by Industrial Court rejecting the application on various grounds including the contentions based on Sections-27, 27A, 30, 32 and 33 of BIR Act viz. that in light of said provisions, the representative union has absolute right to enter into proceeding at any stage. 22. At the time of hearing of this petition, Mr. Vasavada, learned counsel for the union initially emphasized said contention and supported the said contention on the strength of the decision of Apex Court in the case of Shivanand Gaurishankar Baswati v. Laxmi Vishnu Textile Mills, (2008 AIR SCW 8122) and the decision in case of Santuram Khudai v. Kimatrai Printers and Processors Pvt. Ltd. ( (1978) 1 SCC 162 : AIR 1978 SC 202 ). 23. Of course Mr. Bhatt opposed the said contention on various grounds including the contention that in case of termination of workmen the said proposition is not applicable and employee who is terminated from service has right to contest the application and representative union would not be entitled to enter into proceeding so as to oust terminated employee from contesting his case challenging termination from service. He also submitted that application filed by company was already rejected by the learned Labour Court and said order was not and has never been challenged by the company or by any one including present petitioner union and that therefore the said decision has attained finality and such application at appeal stage would not be maintainable. He also opposed the application on the ground that the union has taken out this petition against an order passed at interlocutory stage of pending Appeals, which is filed against Labour Court's final decision in matter of termination of individual workman, and that therefore the petition should not be entertained and such order can be challenged after final decision in the Appeals. He also opposed the petition on the ground that the union had not filed such application before the learned Labour Court. 24. He also opposed the petition on the ground that the union had not filed such application before the learned Labour Court. 24. The union has taken out the petition against interlocutory order, passed by Appeal Court, in respect of an applications filed by the union in Appeals with a request that the union-which was not party before Labour Court in original proceeding-may be allowed to join the proceeding of Appeal. 25. The Appeal Court, for the reasons recorded in the order, rejected the application. 26. The Appeals are pending before the Industrial Court. 27. In the Appeals, besides the judgment dated 14.05.2012 passed by the learned Labour Court, the main and substantive dispute/issue is with regard to the termination of services of the claimants. 28. Having regard to the fact that the claimants have not prayed for any relief against the union and the allegations as well as the claim are actually aimed at and against the company and considering the eventuality that if the Appeal Court interferes with the learned Labour Court's decision then there would not be any cause or justification for third party i.e union, Mr. Vasavda, learned advocate for the union, after taking instruction from the Secretary of the union who is present in the court, fairly submitted that while keeping all rights and contentions open and alive and without prejudice its rights and contentions against interlocutory order and keeping the right to challenge the said order after the Appeal is finally decided, the union does not press this petition at this stage so that the proceeding related to the Appeal pending before Industrial Court are not delayed. 29. In view of the said submission and statement of learned advocate for the petitioner, the petition is disposed of as withdrawn at this stage without prejudice to the contentions and without prejudice to the right of the union against the interlocutory order which is challenged in present petition. 30. Accordingly the petition stands disposed as withdrawn at this stage. Rule is discharged. Interim relief, if any, stands vacated. No cost and while keeping the said right open.