Research › Search › Judgment

Gujarat High Court · body

2020 DIGILAW 218 (GUJ)

Alpeshbhai Vinubhai Rathod v. Chief Officer

2020-01-31

SONIA GOKANI

body2020
ORDER : 1. All the petitioners are before this Court who are otherwise the members of the Registered Union of Employees of Manavadar. They are aggrieved by the award passed in Reference (IT) No. 234 of 2006 which was pending before the Industrial Court, Rajkot, where they made a request for regularization of their services. Their case had been taken up by the Union, however, learned advocate who appeared for and on behalf of the Union to represent these petitioners had chose not to contest the reference, which resulted into the matter proceeding ex-parte and the Court on 09.08.2016 dismissed the Reference (IT) No. 234 of 2006. 2. In this backdrop, the prayers sought for are as follows:- “(A) That this Hon'ble Court be pleased to admit and allow this petition; (B) That this Hon'ble Court be pleased to issue any appropriate writ, order or direction by quashing and setting aside the judgment and order/award passed by the Hon'ble Labour Court, Rajkot in Reference I.T. No. 234 of 2006 dated 9/8/2016; (C) That the Hon'ble Court be pleased to remand back the matter to the Hon'ble Labour Court for adjudication of the matter on merits. (D) That this Hon'ble Court be pleased to pass any other and further orders in the interest of justice.” 3. This has been resisted strongly, on issuance of notice, by learned advocate Mr. Murli Devnani. According to him, this petition itself is preferred belatedly. Even if, it is assumed without admitting that the petitioners came to know about such rejection for the first time on 25.10.2018, then also, the delay caused in preferring this petition remains unexplained. 3.1. It is further the say of the respondents that after the LPA Bench in Letters Patent Appeal No. 1844 of 2019 and allied matters, stayed the effect and operation of the award dated 24.05.2019 passed by the Industrial Tribunal and the order passed by this Court in Special Civil Application No. 15113 of 2019 dated 06.09.2019 (Coram:- Mr. Biren Vaishnav, J.), this petition has been preferred. 4. The Court has heard at length learned advocate Ms. R.V. Acharya, who has urged fervently that these petitioners are hailing from a very poor economic background. Their social strata is such where their educational qualification is almost nil. Biren Vaishnav, J.), this petition has been preferred. 4. The Court has heard at length learned advocate Ms. R.V. Acharya, who has urged fervently that these petitioners are hailing from a very poor economic background. Their social strata is such where their educational qualification is almost nil. She further has urged that as they were represented by the Union, they had no cause of worry and at no point of time they have shown any neglect. When inquired from the representative of the union, the stereotype answer was given of the pendency of the matters. She has urged that the petitioner should not be condemned unheard. What happen on the merit, shall need to be determined after availing, the parties, opportunity of adducing evidence. She ensures the fullest cooperation from the petitioners. 5. Per contra, learned advocate Mr. Devnani has objected to any kind of interference as according to him, the Trial Court was right in rejecting the reference in as much as after the lawyer stopped representing these petitioners, the notice also had been issued to them, no one had bothered to respond even. According to him, during the pendency of LPA No. 15113 of 2019 and allied matters, this petition has been preferred to try the benefits of pendency of the matter. The petitioner cannot be permitted to invoke extra-ordinary or equitable jurisdiction, when it has also chosen not to reveal the pendency of the LPA between the same parties. 6. On careful consideration of the pleadings, evidence and submissions of both the sides, this Court shall need to refer to the chronology of the events which led to this petition. It appears that the petitioners who were working as daily wagers with the respondent – Manavadar Municipality had approached the Court by preferring Reference (IT) No. 234 of 2006 for regularization and also for availing other benefits. This Reference (IT) No. 234 of 2006 was pending when the services of the present petitioners came to be terminated, despite clear law that without the permission of the Labour Court, this could not have been done. Alleging this being a breach of Section 33(A) of the Industrial Disputes Act, a complaint came to be made being Complaint (IT) No. 14 of 2010. Admittedly, the reference had been pending from the year 2006 and the step of terminating the services of the petitioners was taken on dated 21.12.2009. Alleging this being a breach of Section 33(A) of the Industrial Disputes Act, a complaint came to be made being Complaint (IT) No. 14 of 2010. Admittedly, the reference had been pending from the year 2006 and the step of terminating the services of the petitioners was taken on dated 21.12.2009. No permission has been sought of any of the authorities at the time of ending the services of the petitioners. It appears that no procedure had been followed for terminating the services. 7. The Industrial Tribunal allowed the complaint (IT) No. 14 of 2010 and held the act of terminating the services and stoppage of the work on 21.12.2009, contrary to the provisions of Section 33(A) of the Industrial Disputes Act. The Court further directed the reinstatement with the backwages of 25%. This had been challenged by way of Special Civil Application No. 15113 of 2019 and allied matters, where the Court dismissed the petitions of Municipality and upheld the breach of Section 33(A) of the Industrial Disputes Act with the following reasonings:- “7. Section 33(A) of the Industrial Disputes Act reads as under : 33A. Special provision for adjudication as to whether conditions of service, etc., changed during pendency of proceedings.- Where an employer contravenes the provisions of section 33 during the pendency of proceedings 6 before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal], any employee aggrieved by such contravention may, make a complaint in writing, in the prescribed manner,-- (a) to such conciliation officer or Board, and the conciliation officer or Board shall take such complaint into account in inediating in, and promoting the settlement of, such industrial dispute; and (b) to such arbitrator, Labour Court, Tribunal or National Tribunal and on receipt of such complaint, the arbitrator, Labour Court, Tribunal or National Tribunal, as the case may be, shall adjudicate upon the complaint as if it were a dispute referred to or pending before it, in accordance with the provisions of this Act and shall submit his or its award to the appropriate Government and the provisions of this Act shall apply accordingly.] 8. What essentially is not in dispute is that the main reference No. 234/2006, was pending on the date when the services of the workmen was put to an end. I do not agree with the submission of learned advocate Mr. What essentially is not in dispute is that the main reference No. 234/2006, was pending on the date when the services of the workmen was put to an end. I do not agree with the submission of learned advocate Mr. Devnani that since the Tribunal dismissed the reference of regularisation without merit, the benefit of breach of Section 33(A) could not have been granted. The main reference was dismissed on 9.8.2016. The dismissal of the workmen was in the year 2009 on the date on which the reference was admittedly pending. It obviously entitled the workman to invoke provisions of section 33A. 9. As far as the contention of learned advocate Mr. Devnani, that the employees were of the contractor, is concerned a perusal of the reasonings of the Tribunal in para 10 would indicate that the Tribunal has examined deposition of Shri Parbat Chavda on behalf of the employer. It was the case of the employers that the services were not terminated at the hands of the Chief Officer but by the contractor. It is in this context that the Tribunal has observed that had the employer thought it fit it could have examined the Chief Officer to prove such case, which he did not. 10. Admittedly, therefore, when on the date when the regularisation award was pending, the services of the workmen were put to an end, there was apparent breach of Section 33(A) of the I.D Act. Therefore, there is no reason why the award of the Tribunal needs to be disturbed. The petitions are therefore dismissed. No order as to costs.” 8. The Letters Patent Appeals have preferred before the Division Bench, which are pending and are posted on 04.02.2020. The Division Bench has passed the following order on 10.12.2019:- “1. We have heard Shri Murali N. Devnani, learned counsel for the appellants and Ms. R.V. Acharya, learned counsel for the respondent in Letters Patent Appeal No.1844 of 2019. 2. Issue Notice. Ms. Acharya, learned counsel waives notice on behalf of the respondent. She prays for and is granted two weeks' time to file counter-affidavit. The appellants will have further two weeks' time to file rejoinder affidavit. 3. List the matters on 15.01.2020 for final disposal. 2. Issue Notice. Ms. Acharya, learned counsel waives notice on behalf of the respondent. She prays for and is granted two weeks' time to file counter-affidavit. The appellants will have further two weeks' time to file rejoinder affidavit. 3. List the matters on 15.01.2020 for final disposal. Till the next date fixed, the effect and operation of the impugned order dated 24.05.2019 passed by the Industrial Tribunal as also the order dated 06.09.2019 passed by the learned Single Judge in Special Civil Application No.15113 of 2019 shall remain stayed. 4. Ms. Acharya states that in the other connected matters, she would be filing her Vakalatnama within two weeks.” 9. In this backdrop, if this Court considers the passing of award ex-parte by the Labour Court, it can be noticed that not only the Court availed the opportunity to the Union, it issued the notice subsequently to the petitioner (Registered Union) and it represented the case by filing Vakalatpatra of advocate Mr. Rathod who then never appeared nor contested. At the same time, if one looks at the social and economic background of the petitioners and the factum of their having trusted the representative of trust to peruse their legal remedy, at the best what was expected of the petitioner was to inquire from the legal representative of the Union of the status of pending matter of theirs. This according to the petitioner had already been done and the reply received from the representative of the Union was that the matter was pending in the Court. 10. Even otherwise, this Court notices that the record is also indicative of the representation through Union and it is not the private representative. Most of the petitioners are unemployed and can hardly afford to approach different forums for their various remedies. 11. Be that as it may, considering the representation of petitioners through Union and poor economic condition of the petitioners coupled with their social background, it would be unjust to dismiss the case without availing the opportunities to them, as the parties are not required to be condemned unheard merely for their not having been informed while being represented through union. The lack of due care ordinarily is noticed that would always prove fatal to the cause, however, in the case on hand, there is absence of any such requisite care. 12. The lack of due care ordinarily is noticed that would always prove fatal to the cause, however, in the case on hand, there is absence of any such requisite care. 12. Resultantly, the Court is of the firm opinion that these petitioners shall be given the right to pursue their legal remedy and make an attempt to prove the case on merit. It is for the Court concerned then to decide on the strength of the oral as well as documentary evidence whether the case of regularization has been made out by each of them. Merely because they have various demands and they have taken a legal recourse, they should not be denied the opportunity of adducing evidence and pursue the legal remedy in a legal and expedited manner. 13. This Court is of the opinion that the petitioners since cannot afford to engage a private lawyer before the Labour Court where the Reference (IT) No. 234 of 2006 is being restored, let the effective legal aid be provided to the petitioners, if they so wishes and the lawyer concerned shall be from the empanelled list who shall take a due care with promptness to pursue the remedy. 14. Resultantly, this petition is allowed quashing and setting aside the award dated 09.08.2016 passed in Reference (IT) No. 234 of 2006, relegating the parties to the concerned Court which shall restore the matter being Reference (IT) No. 234 of 2006 and proceed from the stage where the said reference had been dismissed. Both the sides to cooperate in proceeding expeditiously. Parties to bear their own cost. Direct service is permitted.