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2024 DIGILAW 1226 (GUJ)

Kanta v. Gas Authority of India Ltd.

2024-06-12

HEMANT M.PRACHCHHAK

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JUDGMENT : Hemant M. Prachchhak, J. 1. By way of present petition under Articles 226 and 227 of the Constitution of India the petitioner has prayed for below mentioned relief/s:- "4(A) That Your Lordships be pleased to issue an order, direction and / or writ in the nature of certiorari and/or any other appropriate writ, order or direction, quashing and setting aside the impugned order rejecting the reference of the dispute, being illegal, perverse and contrary to the record and against the order and judgment passed by this Hon'ble court in earlier Spl.C.A. No.2550/99. (B) Direct the Labour Court to implead the petitioner being lawfully wedded wife of the deceased Shri Shushilkumar and be further pleased to direct the learned Labour Judge to decide the issue on merit within reasonable time; (BB) That Your Lordships be pleased to quash and set aside the impugned order dated 23.2.2007, as being illegal and against the mandatory provisions of Section 10(8) of the Industrial Disputes Act, and permit the applicant to be joined as party. (C) Any other and such further relief as the Hon'ble Court deems fit and proper in the interest of justice." 2. The brief facts giving rise to present petition are that the husband of the petitioner was working as Driver in the Gas Authority of India and his service came to be terminated on 10.6.1992. The husband of the petitioner has challenged the legality and validity of the termination order by raising an industrial dispute before the Labour Court, which was registered as Reference (LCS) No. 228 of 1994. The said reference came to be rejected by the Labour Court on the ground that appropriate government is the Central Government and not the State of Gujarat. 2.1. The husband of the petitioner has challenged said order by filing Special Civil Application No. 2550 of 1999 which was allowed vide order dated 25.8.2005. Thereafter, the matter was heard by the labour Court and again rejected the same on the ground that the appropriate government is the Central Government and not the State Government. Thereafter, the petitioner filed an application for joining legal heirs on record vide Exh.26 and the said Exh.26 came to be rejected vide order dated 23.2.2007. Thereafter, the matter was heard by the labour Court and again rejected the same on the ground that the appropriate government is the Central Government and not the State Government. Thereafter, the petitioner filed an application for joining legal heirs on record vide Exh.26 and the said Exh.26 came to be rejected vide order dated 23.2.2007. The review application was filed wherein the labour Court vide order dated 23.2.2007 allowed the application filed vide Exh.15 and the reference was rejected on the ground that the Central Government is the appropriate government. The petitioner submitted ration card wherein the petitioner's name and name of her children were mentioned. 2.2. In view of the above facts, the petitioner has approached this Court by way of filing present petition. 3. Heard Mr. Mishra, learned Counsel for the petitioner and Ms. Nancy Sonly for M/s. Trivedi and Gupta for the respondent. 4. Mr. Mishra, learned Counsel for the petitioner has submitted that impugned order passed by the labour Court is illegal and erroneous. He has further submitted that earlier this Court has quashed and set aside the order passed by the labour Court and directed the labour Court to decide the issue on merits, however instead of deciding the issue on merits, the labour Court has rejected the matter on the ground of jurisdiction. He has further submitted that the said issue was exhaustively dealt with by this Court in earlier petition being Special Civil Application No.2550 of 1999. 4.1 Mr. Mishra, learned Counsel for the petitioner has also submitted that the labour Court has not allowed the application for bringing legal heirs on the record and therefore, the said action is also illegal and deserves to be quashed and set aside. 4.2 Mr. Mishra, learned Counsel for the petitioner has relied upon the decision of this Court in case of Rasulbhai Pirbhai Shaikh vs. Jasumatiben Indravadan Trivedi and others passed in Special Civil Application No. 957 of 1992 dated 18.12.1992 and more particularly paragraph Nos. 6, 7 and 8 which read as under:- "6. That was a case where the workman had died during the pendency of the reference. The Madras High Court was called upon to examine, whether the heirs or legal representative of the workman could continue the said proceedings. 6, 7 and 8 which read as under:- "6. That was a case where the workman had died during the pendency of the reference. The Madras High Court was called upon to examine, whether the heirs or legal representative of the workman could continue the said proceedings. It was in that context that the above observations were made by the Madras High Court while interpreting Section 18(3) of the Act. Consequential effect on the adjudication proceedings on the death of an employer would be quite different from the consequences following the death of a workman. Even if an employer dies, his industrial establishment may continue in the hands of his heirs and legal representatives. The claim which the workman makes against the employer, is qua the employer, not of a personal nature but because he happens to be the owner of the industrial establishment. The relief which the workman may be claiming can be granted even after the death of the employer, if the industrial establishment either remains in the hands of the successor in interest or in the heirs and legal representatives of the deceased employer. Merely because the name of the employer would thereafter change, it cannot be said that there is a substitution by a fresh dispute of the dispute, which was referred earlier to the Court by the Government. Section 18 of the Act provides that a settlement or an award, once it has become enforceable and if the employer is a party to it, shall be binding on the employers, heirs, successors, assigns in respect of their establishment to which the dispute relates. The rights of the workman against the employer qua his establishment cannot be made to die with the death of the employer. There does not appear to be any justification for taking such a view. Neither the provisions of the Industrial Disputes Act nor any principle of law requires us to take such a view. On the contrary, we are of the opinion that it would be consistent with the provisions of the Industrial Disputes Act to hold that the rights of the workman would survive even against the heirs and legal representatives of the employer, no doubt, qua the establishment to which the dispute relates, either because they have not inherited the said establishment or for any other reason, then, obviously, they cannot be joined as parties to the proceedings. But that is quite different from saying that the Labour Court has no power to bring the heir or legal representative of the employer on record in a matter which is referred to it under Section 10 of the Act. In our opinion, the observations made by this Court in the case of Management of Bank of Baroda's case (supra) and those of the Supreme Court in Hochtief Gammon's case referred to above, do lend support to this view. 7. We, therefore, hold that the Labour Court was in error in holding that it had no jurisdiction to substitute the name of the deceased employer by his legal heirs and representatives on the ground that in doing so it would be going beyond the terms of the reference. 8. In the result, this petition is allowed. The order passed by the Labour Court whereby the application, Ex. 4, came to be dismissed is set aside. The Labour Court is directed to pass a fresh order on the application, Ex. 4, consistently with this judgment and proceed further with the matter in accordance with law. Rule is made absolute accordingly with no order as to costs." 4.3. In view of the above facts, Mr. Mishra, learned Counsel for the petitioner has submitted that present petition may be allowed and the relief prayed for by the petitioner may be granted. 5. On the other hand, Ms. Nancy Soni, learned Counsel for M/s. Trivedi and Gupta for the respondent has strongly objected present petition. She has submitted that the definition of the workman under the Act, does not include the legal heirs or legal representatives of the workman and therefore, in such circumstance, present petition is not maintainable and therefore, labour Court has rightly rejected the application filed by the petitioner. 6. Ms. Nancy Soni, learned Counsel for the respondent has relied upon the affidavit-in-reply dated 29.7.2019 filed on behalf of the respondent and more particularly paragraph Nos. 5 to 10 which reads as under:- "5. 6. Ms. Nancy Soni, learned Counsel for the respondent has relied upon the affidavit-in-reply dated 29.7.2019 filed on behalf of the respondent and more particularly paragraph Nos. 5 to 10 which reads as under:- "5. I humbly submit that section 2(k) of the Act defines 'industrial dispute' as below: "2(k) industrial dispute" means any dispute or difference between employers and employers or between employers and workmen, or between workmen and workmen, which is connected with the employment or non-employment or the terms of employment or with the conditions of labour, of any person;" It is submitted that, a plain reading of the above mentioned definition of 'industrial dispute' clearly refers to a dispute related to an individual workman or group of workmen and the same does not provide for any benefit on the legal representative/ heir, if any, of the workman, in circumstances where the workman dies during the pendency of the Reference proceedings before the Labour Court. 6. 6. I humbly state that section 2(s) of the Act defines the term 'workman' as below: "2(s) "workman" means any person (including an apprentice) employed in any industry to do any manual, unskilled, skilled, technical, operational, clerical or supervisory work for hire or reward, whether the terms of employment be express or implied, and for the purposes of any proceeding under this Act in relation to an industrial dispute, includes any such person who has been dismissed, discharged or retrenched in connection with, or as a consequence of that dispute, or whose dismissal, discharge or retrenchment has led to that dispute, but does not include any such person- (i) who is subject to the Air Force Act, 1950 (45 of 1950), or the Army Act, 1950 (46 of 1950), or the Navy Act, 1957 (62 of 1957); or (ii) who is employed in the police service or as an officer or other employee of a prison; or (iii) who is employed mainly in a managerial or administrative capacity; or (iv) who, being employed in a supervisory capacity, draws wages exceeding one thousand six hundred rupees per mensem or exercises, either by the nature of the duties attached to the office or by reason of the powers vested in him, functions mainly of a managerial nature." In view of the above mentioned definition, it is not open for the heir/legal representative of the deceased workman to challenge or to proceed or to continue Reference proceedings pertaining to the industrial dispute raised by the workman, who has died during the pendency of such proceedings. It is submitted that the definition of the 'workman' under the Act, does not include the heir or legal representative of the workman, therefore in such circumstances the captioned petition is not maintainable and the same deserves to be dismissed. 7. I humbly submit that section 11 sub-section 3 of the Act does not empower the Labour Court to summon or to bring on record the heirs/legal representatives of the workman in any pending proceedings, after the death of the 'workman' and therefore the captioned petition requires to be dismissed by this Hon'ble Court. 8. I humbly submit that the question involved in the case of Steel Authority of India Limited & Ors. Vs. National Union Waterfront Workers and Ors. 8. I humbly submit that the question involved in the case of Steel Authority of India Limited & Ors. Vs. National Union Waterfront Workers and Ors. reported in (2001) 7 SCC 1 was pertaining to prohibition of contract labour, wherein the Hon'ble Supreme Court had decided the question of "appropriate Government" as being incidental / ancillary to the main issue and therefore the above mentioned authority would not be applicable to the facts and circumstances of the captioned petition and hence the same deserves to be dismissed. 9. With reference to ground (a) of para 1 of the captioned petition, I say that in so far as the allegation made against the present respondent is concerned, the same are denied and not admitted. I humbly submit that the Ld. Labour Judge, Surat while passing the impugned award has considered the entire case on merits and after appreciation of the factual aspect as well as the law regarding "appropriate Government" under section 2(a)(i) of the Act. I humbly state that the award dated 17.9.1998 passed by the Ld. Labour Court, Surat in Reference (LCS) No.228 of 1994, came to be challenged before this Court by way of a writ petition being Special Civil Application (SCA) No.2550 of 1999, wherein this Court had passed an order dated 25.8.2005 whereby the award dated 17.9.1998 was quashed and set aside and the matter was remanded to the Ld. Labour Court Surat for deciding the case afresh on merits after taking into consideration the contentions of both the sides and to decide the matter without being influenced by the earlier order. I humbly submit that thereafter the Ld. Labour Judge Surat passed the impugned award after considering the contentions of both the parties and taking into consideration the relevant question pertaining to 'appropriate Government', and came to the conclusion that it is the Central Government under whose authority the present respondent is working and therefore in such circumstances, the Central Government is the 'appropriate Government' to refer the industrial dispute under the Act and not the State Government. It is submitted that the petitioner had filed an application for joining legal heirs on record vide Exh. 26 in the Reference in question. The said Exh. It is submitted that the petitioner had filed an application for joining legal heirs on record vide Exh. 26 in the Reference in question. The said Exh. 26 application came to be rejected by the Labour Court dated 23.02.2007 on the ground that the application for joining legal heirs was not filed within the prescribed period of limitation and also on the fact that the petitioner had failed to produce appropriate documents to prove her marriage/legal heir to the deceased workman. I deny that notification issued by Govt. of India declaring the present respondent as 'controlled industry' would not apply to the facts and circumstances of the present case, as the present case pertains to the industrial dispute, which has arisen prior to the date of notification i.e. 29.8.2003. I humbly state that the Central Govt., in exercise of its powers conferred by section 40(1) of the Act issued the notification, whereby the present respondent is declared as 'controlled industry'. Therefore, in view of the above, it is the Central Government which is the appropriate Government and the same is rightly decided by the Ld. Labour Judge Surat in the impugned award, therefore, in such circumstances, the captioned petition deserves to be dismissed. 10. With reference to ground (b) of para 1 of the captioned petition, I say that in so far as the allegation made against the present respondent is concerned, the same are denied and not admitted. It is denied that the names mentioned in the Ration card are the persons who are the legal heirs of the deceased workman as alleged by the present petitioner. I humbly state that the present petitioner has miserably failed to prove her marriage with the deceased workman and that no certificate of marriage or certificate of succession were produced by the present petitioner and therefore the Ld. Labour Judge Surat, has rightly decided the impugned award challenged in the captioned petition. In view of the facts and circumstances as mentioned above, the captioned petition does not deserve to be entertained and the same may be dismissed by this Hon'ble Court." 7. In view of the above facts, Ms. Nancy Soni, learned Counsel for the respondent has submitted that present petition may not be entertained and the same may be dismissed. 8. I have perused the material available on record as well as relevant documents. In view of the above facts, Ms. Nancy Soni, learned Counsel for the respondent has submitted that present petition may not be entertained and the same may be dismissed. 8. I have perused the material available on record as well as relevant documents. I have also gone through the impugned order passed by the labour Court. 9. It appears that the labour Court has rejected the application for bringing legal heirs on the ground that the same was filed at belated stage and labour Court has no power to condone delay. Further, the labour Court has also rejected the reference on the ground of jurisdiction. 10. The said issue has already been decided by this Court in earlier petition vide judgment dated 25.8.2005 in Special Civil Application No.2550 of 1999. In the said decision this Court has observed as under:- "3. I have heard the learned counsel for the parties. Having perused the materials produced on record, it transpires that the Labour Court has rejected the Reference in view of the decision of the Apex Court in the case of Air India Statutory Corporation v. United Labour Union reported in A.I.R. (Vol. 90) 1997, S.C., p. 125. However said view has been now reversed by the recent decision of the Apex Court in the case of steel Authority of India Ltd., & Ors., v. National Union Waterfront Workers & Ors., reported in (2001) 7 S.C.C. p. 1. Therefore, in view of the peculiar facts and circumstances of the case and in view of the decision of the Apex Court in the case of Steel Authority of India Ltd., & Ors., v. National Union Waterfront Workers & Ors., (supra), I am of the opinion, that the impugned award is required to be quashed and set aside and the matter is required to be remanded to the Labour Court for fresh decision. 4. In the premises aforesaid, on the facts and circumstances of the case, the impugned award passed by the Labour Court is quashed and set aside. The matter is remanded to the Labour Court for deciding afresh on merits, after taking into consideration the contentions raised by both the sides. 4. In the premises aforesaid, on the facts and circumstances of the case, the impugned award passed by the Labour Court is quashed and set aside. The matter is remanded to the Labour Court for deciding afresh on merits, after taking into consideration the contentions raised by both the sides. It is clarified that the Labour Court shall hear and dispose of the matter within a period of one year from the date of receipt of writ of this Court, without being influenced by the earlier order which is quashed in the present petition and also the present order, since the same has been passed without entering into the merits of the case 5. Rule is made absolute to the aforesaid extent with no order as to costs." 11. In view of the aforesaid facts and decision of this Court dated 25.8.2005 in Special Civil Application No.2550 of 1999, present petition deserves consideration and the same requires to be partly allowed. 12. Hence, the matter is remanded back to the Labour Court for its fresh decision qua joining the legal heirs of the deceased respondent workman. So far as the issue with regard to appropriate government is concerned, the same has already been decided earlier by this Court and therefore, there is no need to re-examine the said issue again and again. 13. In view of the fact that the reference is of the year 1994, the concerned labour Court is hereby directed to decided the issue within period of three months from the date of receipt of copy of present order. 14. Accordingly, present petition stands disposed of. Rule is made absolute to the aforesaid extent.