IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 9850 of 2012
For Approval and Signature:
HON'BLE SMT. JUSTICE ABHILASHA KUMARI
===================================================== 1 Whether Reporters of Local Papers may be allowed to see the judgment ? No To be referred to the Reporter or 2 not ?
No 3 Whether their Lordships wish to see the fair copy of the judgment ? No Whether this case involves a substantial question of law as to the 4 interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No =====================================================
MANUBHAI J PATEL & 4 - Petitioner(s) Versus
MAHENDRA GUJARAT TRACTOR LTD - Respondent(s)
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Appearance :
MR TR MISHRA for Petitioner(s) : 1 - 5. None for Respondent(s) : 1, =====================================================
CORAM : HON'BLE SMT. JUSTICE ABHILASHA KUMARI
Date : 22/08/2012
ORAL JUDGMENT
1. This petition has been preferred by the petitioners invoking the jurisdiction of this Court under Articles 226 and 227 of the Constitution of India, inter alia, with a prayer to direct the respondent (employer) to pay, and continue to pay, full wages from January 2012 onwards till the References pending before the Industrial Tribunal are finally decided.
2. The brief facts of the case as emerging from the averments made in the petition are that, the petitioners (five in number) are employees of M/s. Mahindra Gujarat Tractor Ltd. (the respondent Company). Industrial disputes with regard to the policy of transfer of the respondent Company have been referred to the Industrial Tribunal, Baroda, where they are pending final adjudication. In the said references, the petitioners have filed (IT) Complaint Nos.1 to 5 of 2012, with a prayer to restrain the respondent Company from transferring the employees who are in the Class IV Cadre. On 3-4-2012 the Industrial Tribunal passed an interim order suspending the implementation, operation and execution of the transfer orders of the employees till the final disposal of the References. As per the say of the petitioners, the References are still pending and the interim relief granted by the Industrial Tribunal has neither been vacated nor modified. The grievance of the petitioners is that they are not permitted to resume duties from January 2012 onwards even though they have addressed a letter to the respondent Company on 4-4-2012. It is the say of the petitioners that they have not been paid wages from January 2012 onwards, for which a prayer has been made in the present petition. The petitioners have also made an alternative prayer to direct the Office of this Court to place the petitions filed by the respondent, challenging the interim order of the Industrial Tribunal restraining them from transferring the employees, for urgent hearing. However, as the petitions filed by the respondent Company are now on Board, the alternative prayer need not be considered by the Court.
3. Mr.T.R.Mishra, learned advocate for the petitioners has submitted that the petitioners are being denied wages from January 2012 in spite of the fact that the transfer orders have been stayed by the Industrial Tribunal. It is further submitted that the petitioners are unskilled workers working in the Factory at Baroda and they have been transferred to different States like Utter Pradesh, Bihar, Andhra Pradesh, Orissa and Karnataka, only with a view to harassing and victimising them. The transfer order dated 13-1-2012 indicates that it has been issued with a malafide intention. However, as the said order is under adjudication before the Industrial Tribunal, no submissions are required to be made on merits. It is contended that the only grievance that the petitioners are agitating before this Court is with regard to the denial of wages, which is illegal and violative of their fundamental rights. It is further submitted that when the References are pending, the service conditions of the petitioners are required to be maintained and if the employer wants to change the service conditions, approval of the Tribunal has to be taken as per the provisions of Section 33 of the Industrial Disputes Act, 1947 (“the Act” for short). It is further submitted that the respondent Company has not filed an approval application before transferring the petitioners as per the provisions of Section 33(2)(b) of the Act. With regard to the prayer of the petitioners for directions to pay wages from January 2012, it is acceded by the learned advocate for the petitioners that though there is a remedy under Section 33-C(2) of the Act, the same is not efficacious, therefore, this Court may entertain the petition.
4. In support of his submissions, learned advocate for the petitioners has placed reliance upon the following judgments:
(1) Between Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. and Ram Gopal Sharma and others, 2002-I-LLJ 834
(2) Manjulaben Dhirajlal Joshi v. Kodinar Municipality, 2008 III CLR 790
(3) Radhey Shyam Chipa v. Rajasthan State Road Transport Corporation,Jaipur, 2012 II CLR 178
(4) Tulsiram Ramdas v. General Manager, judgment dated 28-4-1998 rendered in Special Civil Application No.7737 of 1997
(5) Between Management of Rane Brake Linings Ltd. Chennai and Presiding Officer, Industrial Tribunal, Chennai, 2004 (4) LLN 214
(6) Between The Bhavnagar Municipality and Alibhai Karimbhai, 1977(34) FLR 229
(7) T.N.State Transport Corporation v.
Neethivilangan, Kumbakonam, 2002 SCC (L&S) 40
5. It may be kept in mind that in the References filed by the petitioners that are pending before the Industrial Tribunal, they have only sought the relief of restraining the respondent Company from transferring the petitioners who are in the Class IV Cadre. The transfer orders passed by the respondent Company that are impugned in the References have been stayed by an interim order dated 3-4-2012 of the Industrial Tribunal. A copy of the said order has been annexed as Annexure “A” to the petition, and a perusal thereof indicates that the stay is to continue till the final disposal of the original complaint. Before this Court, the petitioners have made only one substantive prayer, that is, to direct the respondent Company to pay full wages to them from January 2012 onwards till the complaint pending before the Industrial Tribunal is finally disposed of.
6. Against this factual background, the judgments relied upon on behalf of the petitioners may be considered.
7. In Jaipur Zila Sahakari Bhoomi Vikas Bank Ltd. and Ram Gopal Sharma and others (Supra), a Constitution Bench of the Supreme Court has held, while discussing Sections 31, 33(2)(b) and 33-A of the Industrial Disputes Act,1947 that if approval is not granted for an order of discharge or punishment, by dismissal or otherwise, of the workman during the pendency of the industrial dispute proceedings, for alleged misconduct not connected with the dispute, the said order becomes ineffective from the date it was passed. It has further been held that not making an application under Section 33(2)(b) seeking approval or withdrawing it, before any order is made thereon, is a clear case of contravention of the proviso to Section 33(2)(b) of the Act.
8. Though the principles of law enunciated in the above-quoted judgment cannot be disputed in the context of the legal and factual matrix before the Apex Court, they would not apply to the facts of the present case, as the prayer made by the petitioners herein pertains to the payment of wages. There is no prayer remotely touching upon the provisions of Section 33. As the References are still pending before the Industrial Tribunal, this prayer would fall within the ambit and scope of adjudication by the Tribunal.
9. In Manjulaben Dhirajlal Joshi v. Kodinar Municipality (Supra), this Court was dealing with a case of termination of services. The Industrial Tribunal had held the termination to be illegal and directed reinstatement. The Award was challenged in a writ petition, but the petitioner was reinstated in service and, thereafter, again terminated without following due procedure of law. The second termination was also challenged by filing a petition. The respondent Municipality also challenged the Award by filing another petition. In the above circumstances, the Court held that the action of the respondent Municipality in not reinstating the petitioner in service was unjust. The facts of that case are on a totally different footing in comparison to the facts of the present case. In that case, as the order of the Court directing reinstatement had not been complied, the availability of the alternative remedy was dispensed with. However, in the present case, there are no orders from any Court with regard to payment of wages from January 2012 onwards (which is the substantive prayer), for the reason that the petitioners have never agitated this grievance before the Labour Court at any point of time. This judgment would also not be helpful to the petitioners.
10. In Radhey Shyam Chipa v. Rajasthan State Road Transport Corporation,Jaipur (Supra), the Division Bench of the High Court of Rajasthan set aside the order of the learned Single Judge of that Court as being contrary to the view taken by the Apex Court in T.N.State Transport Corporation v. Neethivilangan, Kumbakonam (Supra).
11. In T.N.State Transport Corporation v.
Neethivilangan, Kumbakonam (Supra), the facts of the case were that after holding a domestic inquiry against the respondent workman, the appellant Corporation passed an order on 5-3-1984, dismissing him from service. Thereafter, the appellant made an application seeking approval under Section 33(2)(b) of the Act before the Tribunal, which was rejected on merits vide order dated 30-7-1984. Though the order of the Tribunal was upheld by the High Court and Supreme Court, the appellant Corporation neither reinstated the respondent in service, nor paid him wages. In the year 1999, the respondent filed a Writ Petition before the High Court for reinstatement and consequential benefits. Allowing the petition, the learned Single Judge held the respondent to be in continuous service from the date of dismissal, with a right to all consequential benefits. That decision was upheld by a Division Bench. It was the contention of the appellant that the rejection of the application for approval under Section 33(2)(b) did not have the effect of entitling the respondent to claim reinstatement and the respondent ought to have approached the Tribunal for enforcement of his rights. The plea of the appellant Corporation was rejected by the Supreme Court by holding that:
“While the employer has the discretion to initiate a departmental inquiry and pass an order of dismissal or discharge against the workman the order remains in an inchoate state till the employer obtains order of approval from the and employee may been ended but not the de jure relationship for that could happen only when the Tribunal accords its approval. The relationship of employer and employee is not legally terminated till approval of discharge or dismissal is given by the Tribunal.” (Para 16)
12. While the principles of law enunciated by the Supreme Court in the above-quoted judgment cannot be disputed in the context of the facts of that case, the same would not apply to the present case wherein the prayer made by the petitioners is for payment of wages. At the cost of repetition, it may be noted that the present case is for payment of wages and there is no prayer regarding an application for approval under Section 33(2)(b) of the Act not being made. In any case, the terms of the pending References pertain to transfer of the employees only, and the aspect of approval would be relevant in those proceedings before the Tribunal and not before this Court, where the prayer is for payment of wages.
13. The learned counsel for the petitioners has relied upon a judgment of a Division Bench of this Court dated 28-4-1998 passed in Special Civil Application No.7737 of 1997. As per the facts of that case, the petitioner therein was appointed as Khalasi in the Western Railway in the year 1964 and posted at Nandurbar. He was transferred to Amalner on 26-11- 1971, after which he was transferred to Vyara by order dated 24-5-1972 as a Water Fitter Khalasi. Upon presenting himself at Vyara, the petitioner was not given any work on the ground that there was no vacancy of Water Fitter. Thereafter, he was served with a chargesheet alleging that he had not carried out the instructions of his superior. A Departmental inquiry was held resulting in removal of the petitioner from service, by an order dated 9-11-1973. Aggrieved thereby, the petitioner preferred an appeal before the Appellate Authority to quash the said order. Thereafter, the petitioner was served with an order dated 22-2-1975 placing him under suspension with retrospective effect from November 1973. It was claimed by the petitioner that he was not paid any subsistence allowance. After suspension of the petitioner, a fresh chargesheet was issued. At that stage, the petitioner had approached the Conciliation Officer under the Industrial Disputes Act,1947, but learnt that his services had once again been terminated. An industrial dispute was raised, which was referred to the Central Industrial Tribunal, which partly-allowed the same, by an Award dated 15-6-1992. In spite of notice, the respondent therein did not implement the Award. The petitioner filed Misc. Civil Application No.271 of 1995 in the High Court, under the provisions of Contempt of Courts Act, 1971. Thereafter, the petitioner moved the Central Administrative Tribunal by filing O.A.No.887 of 1996, with a prayer to direct respondent No.1 therein to permit him to discharge his regular duties and make payment of wages, including backwages, in terms of the directions of the Industrial Tribunal. The said O.A. was rejected by the Central Administrative Tribunal, by order dated 19-8-1996, on the ground that it had no jurisdiction to execute the Award passed by the Central Industrial Tribunal, which led the petitioner to approach the High Court.
14. In the above factual background, the Division Bench held as below:
“10. The Award passed by the Industrial Tribunal has become final and under the Award, a legal right is conferred on the petitioner to be reinstated in service with benefit of 60% of backwages and a corresponding obligation is imposed on the respondents to take steps to implement the Award. Once the Award passed by the Tribunal acquired finality, it was the bounden duty of the respondent no.1, to not only act in accordance with the Award and fulfil his obligation under the Award, but also to take all necessary steps to translate the Award into reality. As pointed out earlier, respondent no.1 has not cared to file any affidavit- in-reply to the present petition. Total absence of justification for not implementing the Award justifies the conclusion that respondent no.1 has failed to carry out his duty, resulting into clear infringement of legal right of the petitioner. Therefore, the petitioner has a right to seek a writ of mandamus against respondent no.1.
11. Consequently, the writ petition is allowed. Respondent no.1 is directed to implement the Award dated June 15, 1992 rendered by the Central Industrial Tribunal in Reference (ITC) no.11/84 within a period of two months from the date of receipt of writ. The petitioner shall be paid backwages in terms of Award within two months from the date of receipt of writ.”
15. As can be seen from the facts of that case, the respondent No.1 was not implementing the Award and
16. This judgment would not come to the aid of the petitioners, as it has been rendered in a totally different factual and legal context. In the present case, the petitioners have made a prayer for issuance of directions to the respondent, to pay them wages from January 2012 onwards. The interim order staying the transfer orders of the petitioners is dated 3-4- 2012, whereas the claim of the petitioners for wages is prior thereto.
17. It was, and still is, open to the petitioners to avail of the alternative remedy under Section 33-C(2) of the Act before the appropriate forum. The learned advocate for the petitioners has conceded that alternative remedy under Section 33-C(2) is available to the petitioners, but has hastened to add that the said remedy is not efficacious.
18. In the view of this Court, this submission of the learned advocate for the petitioners cannot be accepted. The main dispute is still pending before the Industrial Tribunal and the non-payment of wages appears to be a fallout of the same. When there is an alternative statutory remedy available to the petitioner, this Court would be slow to exercise discretion under its writ jurisdiction.
19. In Whirlpool Corporation v. Registrar of Trade Marks, Mumbai, 1998(8) SCC 1 the Supreme Court has held as below:
“14. The power to issue prerogative writs under Article 226 of the Constitution is plenary in nature and is not limited by any other provision of the Constitution. This power can be exercised by the High Court not only for issuing writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari for the enforcement of any of the Fundamental Rights contained in Part III of the Constitution but also for “any other purpose”.
15. Under Article 226 of the Constitution, the High Court, having regard to the facts of the case, has a discretion to entertain or not to entertain a writ petition. But the High Court has imposed upon itself certain restrictions one of which is that if an effective and efficacious remedy is available, the High Court would not normally exercise its jurisdiction. But the alternative remedy has been consistently held by this Court not to operate as a bar in at least three contingencies, namely, where the writ petition has been filed for the enforcement of any of the Fundamental Rights or where there has been a violation of the principle of natural justice or where the order or proceedings are wholly without jurisdiction or the vires of an Act is challenged. There is a plethora of case-law on this point but to cut down this circle of forensic whirlpool, we would rely on some old decisions of the evolutionary era of the constitutional law as they still hold the field.”
20. In the present case, though the petitioners may have a legal right to receive wages due to them, however, the same have to be computed in terms of Section 33-C(2) of the Act, which is a special enactment under which an appropriate forum has been constituted for such matters. The case of the petitioners pertains to a money claim which has to be first computed and quantified, therefore, this court does not consider it appropriate to entertain the petition as the needful can best be done by the appropriate forum which can even take evidence, if required.
21. In Vijaya Bank v. Shyamal Kumar Lodh, (2010) 7 SCC 636, the Supreme Court has held as below:
“16. From a plain reading of Section 33-C(2) it is evident that money due to a workman has to be decided by such Labour Court “as may be specified in this behalf by the appropriate Government.” Section 7 of the Industrial Disputes Act, 1947 inter alia confers power to the appropriate Government for constitution of one or more Labour Courts for the adjudication of industrial disputes. It also prescribes qualification for appointment as Presiding Officer of a Labour Court.
17. The Explanation appended to Section 33-C of the Act provides to include any Court constituted under any law relating to investigation and settlement of industrial disputes in force in any State as the Labour Court. The underlying object behind inserting Explanation seems to be varying qualification prescribed for appointment of Presiding Officers of the Labour Court by different State enactments. Parliament took note of the fact while inserting the Explanation that there are different kinds of Labour Courts constituted under the Industrial Disputes Act and the State Acts and a question may arise whether a Labour Court constituted under the Acts, Central or State could entertain a claim made under Section 33C(2) of the Act.
18. An Explanation is appended ordinarily to a section to explain the meaning of words contained in that section. In view of the Explanation the aforesaid Labour Court shall include any Court constituted under any law relating to investigation and settlement of industrial disputes in force in any State. Money due to an employee under Section 33-C(2) is to be decided by “the Labour Court as may be specified in this behalf by the appropriate Government”. Therefore, the expression “Labour Court” in Section 33-C(2) has to be given an extended meaning so as to include the Court constituted under any law relating to investigation and settlement of industrial disputes in force in any State. It widens the choice of appropriate Government and it can specify not only the Labour Courts constituted under Section 7 of the Industrial Disputes Act, 1947 but such other Courts constituted under any other law relating to investigation and settlement of industrial disputes in force in any State.
19. But this does not end the controversy. The power to adjudicate money claim is to the Labour Court “as may be specified in this behalf by the appropriate Government”. Every word used by the Legislature carries meaning and therefore effort has to be made to give meaning to each and every word used by it. A construction brushing aside words in a Statute is not a sound principle of construction. The Court avoids a construction, if reasonably permissible on the language, which renders an expression or part of the Statute devoid of any meaning or application.
20. The legislature never wastes its words or says anything in vain and a construction rejecting the words of a Statute is not resorted to, excepting for compelling reasons. There does not exist any reason, much less compelling reason to adopt a construction, which renders the words “as may be specified in this behalf” used in Section 33C(2) of the Act as redundant. These words have to be given full meaning. These words in no uncertain terms indicate that there has to be specification by the appropriate Government that a particular court shall have jurisdiction to decide money claim under Section 33C(2) of the Act and it is that court alone which shall have the jurisdiction. The appropriate Government can specify the court or courts by general or special order in its discretion.”
(emphasis supplied)
22. The principles of law enunciated in the above- quoted judgment lend support to the view of the Court that as there is a statutory remedy available to the petitioners, this Court, in exercise of jurisdiction under Article 226 of the Constitution of India, would not exercise its writ jurisdiction by entertaining the petition.
23. For reasons stated hereinabove, the petition is rejected.
It is, however, clarified that this Court has not entered into the merits of the claim for Salary made by the petitioners.
(Smt.Abhilasha Kumari,J) arg