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2018 DIGILAW 1478 (HP)

Vinod Kumar v. Nova Security Service Pvt Ltd

2018-08-08

SURESHWAR THAKUR

body2018
JUDGMENT Sureshwar Thakur, J. - Through the instant petition, the petitioner seeks quashing of order, borne in Annexure P-5, and, also espouses relief for quashing of orders, borne in Annexure P-8, whereunder, the apposite interim relief qua staying of operation, of order dismissal of the services, was declined, vis-a-vis, the petitioner. 2. The aforesaid apt application, was, cast during the pendency of the apt reference petition, before, the learned Industrial Tribunal-cum-Labour Court, Shimla. Apt reference whereof, stands, couched in the hereinafter extracted phraseology:- "Whether the demand Notice dated 12.01.2009 raised under section 2K of the Industrial Disputes Act,1947 by Sh. Ashok Kumar son of Sh. Tula Ram Malik and 9 others drivers before the management of the Oberio Cecil Hotel, Chaura Maidan, Shimla and management of Wild Flower Hall, Mashobra, Shimla with the plea that the terms and conditions of their service have been changed by the concerned management without complying with the provisions of section 9-A of the Act, ibid, is legal and justified? If not, to what wages, service benefits and relief the concerned drivers are entitled to from the concerned employer as per demand notice dated 12.1.2009." "Whether the Demand Notice raised by Sh. Ashok Kumar son of Shri Tula Ram Malik & 9 others drivers vide demand notice dated 12.01.2009 (copy enclosed) that their employers are the management of the Oberoi Cecil Hotel, Chaura Mandan, Shimla and Management of Wild Flower Hall, Mashobra, Shimla and M/s Nova Security Prvate Ltd., Quite Office NO.14, Sector 35-A Chandigarh cannot be considered to be their employer, as alleged in the Demand Notice and is legal and justified? If yes, to what service benefits and relief the concerned drivers are entitled to as per Demand Notice dated 12.1.2009." The aforesaid reference visibly appertains, qua a dispute holding visible contradiction, vis-a-vis, the relief espoused, in, the apt application. The effect thereof, is, qua per se, hence, the apt application, whereon the relief to the petitioner, rather stood declined, being not maintainable before the learned tribunal. The effect thereof, is, qua per se, hence, the apt application, whereon the relief to the petitioner, rather stood declined, being not maintainable before the learned tribunal. The further reason for validating, the, refusal of apt relief, vis-a-vis, the petitioner, is engendered, from, (I) despite the apt relief being previously, sought for, as, an interim relief, though an earlier application, whereon, on 31.07.2014, rather the learned tribunal, declined relief to the petitioner, (ii) yet, the, petitioner subsequent thereto, in as much as, on 1.8.2015, espousing by his casting an apt application hence for rendition of a similar therewith apt relief, thereupon, the subsequent thereto, application was barred, and was not maintainable. (iii) Preeminently, with the order of dismissal recorded, upon, the earlier, application, for want of its being quashed, rendered it, to acquire conclusivity, (iv) and also with the subsequent application standing cast under the provisions of Section 9A of the Industrial Disputes Act, provisions whereof stand extracted hereinafter:- "9A. (iii) Preeminently, with the order of dismissal recorded, upon, the earlier, application, for want of its being quashed, rendered it, to acquire conclusivity, (iv) and also with the subsequent application standing cast under the provisions of Section 9A of the Industrial Disputes Act, provisions whereof stand extracted hereinafter:- "9A. Notice of change.- No employer, who proposes to effect any change in the conditions of service applicable to any workman in respect of any matter specified in the Fourth Schedule, shall effect such change,-- (a) without giving to the workmen likely to be affected by such change a notice in the prescribed manner of the nature of the change proposed to be effected; or (b) within twenty- one days of giving such notice: Provided that no notice shall be required for effecting any such change-- (a) where the change is effected in pursuance of any 1 settlement or award]; or (b) where the workmen likely to be affected by the change are persons to whom the Fundamental and Supplementary Rules, Civil Services (Classification, Control and Appeal) Rules, Civil Services (Temporary Service) Rules, Revised Leave Rules, Civil Service Regulations, Civilians in Defence Services (Classification, Control and Appeal) Rules or the Indian Railway Establishment Code or any other rules or regulations that may be notified in this behalf by the appropriate Government in the Official Gazette, apply." (v) Provisions aforesaid, though, make trite expostulation(s) qua the employer being barred to change the terms, and, conditions, of, the service of the workman, deployed by him or by it, (vi) unless preceded by a statutory notice, (viii) AND, though stand relied upon by the applicant/petitioner, to seek, the, affording of relief upon his apt application, (ix) yet no strength can be derived therefrom by the petitioner, given theirs appertaining to the apt pre-reference stage, and, upon transgression thereof, by the employer, hence equipping the workman, to, raise an industrial dispute in respect thereof, and, on failure(s) to seek, for, an apt reference, being made by the Labour Commissioner, vis-a-vis, the Industrial Tribunal. (x) However, when the relief claimed in the application, is, openly contradistinct therewith, besides when there is no bar in the provisions, borne in Section 9A of the Industrial Disputes Act, against, the employer, qua, initiating or concluding, any, departmental inquiry, against, the delinquent employee, nor with any bar being embodied therein, against, the employer, or upon inquiry officer concerned, for, hence rendering findings against the delinquent workman, n sequel whereof, the order, of, dismissal, of, the workman from services, is, rendered, (xi) thereupon, also the mandate, of, Section 9(A) of the Industrial Disputes Act, is, unavailable for recourse by the petitioner, rendering hence, the apposite application being not maintainable, as aptly concluded by the learned tribunal. 3. Be that as it may, even if, assumingly, though the contest reared by the respondent, appertains qua the petitioner being engaged by M/s Mercury Car Rental, and, hence the order dismissing his services, rendered by M/s Nova Security Service Private Limited, hence, being infirm or invalid, thereupon, also the only efficacious alternative remedy available for recourse, vis-a-vis, the petitioner, is, comprised in his casting, an onslaught, upon, the order of dismissal, by his concerting to raise an industrial dispute in respect thereto, and, thereafter also his making strivings for qua the Labour Commissioner, rather making the apt reference, in respect thereto, vis-avis, the industrial Tribunal concerned. 4. For the foregoing reasons, there is no merit in the instant petition, and, it is dismissed accordingly. Consequently, the orders impugned before this Court are affirmed and maintained. All pending applications also stand disposed of. No costs.