Shri Karia, learned advocate for the petitioner has sought leave to put pagination in unpaged documents forming part of this petition. The request is accepted and Shri Karia is permitted to make pagination. 1. Heard learned advocates for the parties.
2. The petitioner – first party employer in Reference (LCA) No. 61 of 1987 from the Court of Presiding Officer, Labour Court, Ahmedabad has approached this Court under Articles 226 and 227 of the Constitution of India, challenging the Award and order dated 25.11.2002, whereunder, by naming it to be Part-I Award, the Reference qua 13 out of 53 workmen's reinstatement demand is accepted with direction to reinstate with 50% of back wages and cost of Rs.700/- to each of them. This order and Award dated 25.11.2002 is subject matter of challenge in this petition as it is stated hereinabove under Articles 226 and 227 of the Constitution of India.
3. The facts in brief, as could be culled out from the memo of petition and accompanying documents, could be set out as under:
The petitioner is a Partnership firm registered under the Indian Partnership Act and it was engaged in manufacturing of Steel having its registered office at Odhav Road, Ahmedabad. As per the say of the petitioner, on account of financial constraints in the year 1986, the petitioner had to close down its unit after following due procedure of law and the closer was brought it out. The said was subject matter of dispute and according to petitioner, there were only six workmen working in the petitioner unit when the petitioner unit was closed down but the respondent union raised Industrial dispute in respect of alleged 52 workmen, alleging that the petitioner retrenched said 52 workmen w.e.f. 12.9.1986 without following the due process of law. The said demand and conciliation proceedings did not yield any
wherein, it was marked as Reference (LCA) No. 61 of 1987. The statement of claim was filed on behalf of the workmen by union interalia
the workmen who have been named in Schedule to the Reference Order, be reinstated with consequential benefits and back wages. The petitioner raised preliminary issues qua maintainability of the Reference as the statement of claim was signed only by the office bearer of the union and not by the individual workman where the reference was qua individual workman for their termination from service. Therefore, provisions of Rule 4 of Industrial Disputes (Gujarat) Rules, 1966 (hereinafter referred to as 'the Rules' for short) is said to have been breached, which would render the reference incompetent. Without prejudice to the aforesaid contention, petitioner further challenged the award with regard to reference not being maintainable in respect of all the workmen and has relied upon its own document, which was in form of a Form which was submitted to the PF Authority for only six persons and claimed that only six workmen have raised their demand. The Labour Court held that only 13 workmen were available for adjudication of the dispute and therefore, the adjudication was confined to said 13 workmen, who were available for adjudication of the dispute and qua other workmen, the reference was treated to have been dismissed for default. Thus, it was claimed as Part-I reference so far as it relates to 13 workmen are concerned and the Tribunal has accepted the entire reference and ordered reinstatement with 50% of the back wages and awarded cost of Rs.700/- to each of the workmen.
4. Learned advocate for the petitioner employer contended that the development in this matter may have some bearing upon the examination of the award in question, therefore, he invited this court's attention to the orders passed in this matter. The order dated 5.8.2003 came to be issued by this Court, wherein, while admitting the matter, this Court issued notice as to interim relief returnable on 26th August, 2003 and recorded that inspite of the impugned order of reinstatement in service, neither of the workmen has reported for duty. The learned advocate Mr. Mishra states that the workmen shall report for duty latest by 25th August, 2003. The learned advocate Shri Karia states that as and when any of these workmen reports for duty, the petitioner shall permit such workman to resume the duty. It is directed that as against the award of back wages, the petitioner shall deposit a sum of Rs.1,50,000/- in this court on or before 25th August, 2003.
5. On 26.08.2003, the Court adjourned the matter after recording some controversy between the parties qua insistence for production of I-card etc., without whittling down the earlier order in any manner.
6. On 15.09.2003, the following order is passed:
“Heard the learned advocates.
As to the reinstatement of the workmen in service, there appears to be a serious dispute.
Mr.Karia maintains that none of the workmen reported for duty after couple of days. None of them appears to be interested in service.
Whereas, Mr.Mishra maintains that all the workmen had reported for duty and they were assigned the work to remove acid sludge.
Each of the workmen has suffered burn injuries on account of such assignment. They had to take treatment in the hospital.
The suggestion is to appoint a monitor to watch for a week or so whether all the workmen report for duty and whether they perform the duty assigned to them.
In the mean time, the Registry is directed to remit the sum of Rs.6,500=00 deposited in this Court pursuant to the order dated 26th August, 2003 to the respondent Union (i.e. National Mazdoor Panchayat). The National Mazdoor Panchayat shall, on receipt of the aforesaid sum of Rs.6,500=00, remit a sum of Rs.500=00 to each of these workmen by way of cost.
Stand over to 18th September, 2003.”
7. On 18.9.2003, the Court passed the following order:
“Heard the learned advocates.
As recorded in the order dated 5th August, 2003 the learned advocate Mr.Mishra had made a statement that each of the workmen shall report for duty with the petitioner Industry latest by 25th August, 2003. However, Mr.Mishra raised dispute and submitted that though the workmen reported for duty on 25th August, 2003, none of the said workmen was permitted to join duty and were asked to produce photo identity. Pursuant to the said statement, under order dated 26th August, 2003 the petitioner Industry was directed to permit the workmen to join duty and not to ask for photo identity. Still, however, the dispute has not been resolved.
The learned advocate Mr.Mishra has stated that the workmen when reported for duty were assigned the work of removing acid sludge, on account of which the workmen have suffered burn injuries on their hands. Whereas, Mr.Karia has disputed the statement made by Mr.Mishra. He has submitted that having reported for duty for a couple of days, none of the workmen turned up. Thus, the workmen are not interested in joining duty at all.
In the aforesaid circumstances, both the learned advocates agree that the Government Labour Officer having jurisdiction over Odhav area may be appointed to monitor whether the workmen report for duty, the nature of assignment given to them, etc.
One of the partners of the petitioner Industry one Shri Bhavesh Chandrakant Mawani has made affidavit on 15th September, 2003. It is stated that the factory runs in three shifts. It is stated that four workmen were assigned duties in each of the three shifts.
In above view of the matter, it is directed that the workmen shall report for duty in the petitioner Industry on 22nd September, 2003 in the shift in which the respective workman had been assigned duty on 1st and 2nd September, 2003. The petitioner Industry will allow the concerned workmen to join duty in the respective shift and will also give the attendance card afresh. Each of the workmen shall perform the duty that is assgined to him.
I am informed that one Shri P.R.Trivedi is the Government Labour Officer having jurisdiction over Odhav area. The said Government Labour Officer Shri Trivedi or any other officer who shall have jurisdiction over Odhav area shall keep the vigil. The Government Labour Officer shall visit the factory premises of the petitioner Industry around two to three times in a shift atleast for 15 days. The Government Labour Officer shall make report to this Court as to how many workmen (the respondents herein) reported for duty in accordance with this order, whether they have been permitted to join duty and have been issued attendance cards, the nature of duties assigned to each of such workmen, etc. The report shall be submitted to this Court on 9th October, 2003.
Stand over to 9th October, 2003.
The Registry shall send copy of this order to Shri P.R.Trivedi, the Government Labour Officer having his office at O/3, New Mental Hospital, Asarva, Ahmedabad, forthwith.”
8. On 9.10.2003, the Court passed the following order:
“Pursuant to the order dated 18th September, 2003 the concerned Labour Officer one Shri P.R.Trivedi has submitted his report on 8th October, 2003.
According to the said Labour Officer, of the 13 workmen 11 workmen have reported for duty. The concerned workmen have been permitted to join duty and they have been given attendance card. The workmen have been assigned duties and have been given gloves and gum boots for their safety. The duties are satisfactorily performed. The workmen have been paid wages for the month of September on 6th October, 2003.
Thus, it appears that 11 workmen have joined the duty and this arrangement shall continue pending the petition. The other two workmen who have not joined duty till today, if they report for duty hereafter, the petitioner - employer shall permit the said workmen to join duty and shall also assign them the duty.
Registry is directed to furnish copy of the report along with annexures to the learned advocates Mr.T.R.Mishra and Mr.B.D.Karia.
Pending this petition there shall be interim stay in terms of paragraph 14(B) in so far as the award for payment of backwages to the workmen is concerned on condition that the petitioner deposits the amount of backwages due and payable to the six workmen who admittedly were in the employment of the petitioner-firm.
Such amount shall be deposited in this Court in monthly installment of Rs.50,000=00 to be deposited on or before 7th day of the respective month.
The first installment of Rs.50,000=00 shall be paid on or before 17th October, 2003.
On the entire amount being deposited in this Court the parties to the petition may move the Court for suitable orders either for investment of the said amount or for disbursement of the said amount.”
9. Accordingly, when the workmen resumed their duties pursuant to order of the Court and quantum of deposition etc. is recorded. It is reported by learned advocate for the workmen that the workmen, who were permitted to resume their duties pursuant to court's order made in this matter, were once again have been terminated and they have taken recourse of raising dispute individually and same are pending before the Court. This fact may not in any manner affect the present position, as question of back wages is still remaining and challenge to the original direction qua reinstatement would also survive and subsequent termination will take its own fate. Shri Karia, learned advocate for employer submitted that said workmen were not terminated and they stopped coming for work from 2004. Be that as it may. In view of aforesaid facts and circumstances, today the matter is placed for hearing and it is heard on merits for the challenge made in this matter.
10. Learned advocate appearing for the petitioner has invited this court's attention to the contentions raised in the written statement qua incompetence of union's right to file statement of claim and submitted that this was contrary to provisions of the Industrial Dispute (Gujarat) Rules, especially Rule 4 of the Rules and finding recorded by the Court in this behalf is incorrect as the dispute though espoused by the union, the fact remains that it was qua independent workman's termination and therefore, the provisions of Rule 4 of the Rules requiring signing of the statement of claim by an independent workman and non-signing of the statement of claim would amount to non filing of claim itself, which will debar the workmen from agitating further their case.
11. Learned advocate for the petitioner thereafter contended that the Labour Court did not appreciate the fact that the documents in form of mark 107/4 and list which was document in form of Form to be submitted to the PF Authority, contained names, out of which, only 6 names were figuring in the list forming part of appendix to the reference order and therefore, qua rest of the workmen the reference is incompetent. It was the duty cast upon the workmen to prove their nexus with employer and Court cannot have brushed aside by saying that the same is not proved.
12. The factum of bringing about the closure on account of economic constraints is in fact pleaded and proved but unfortunately the court has not appreciated this aspect and therefore, the impugned order deserves to be quashed and set aside.
13. Learned advocate appearing for respondent workmen contended that termination of the services of the workmen was brought about on account of victimization as alleged by the union and because of this, workmen were espoused right on the beginning by the union. The notice for intervention and demand is dated 7.10.1986, wherefrom it can very well be said that the cause of workmen collectively espoused by the union and termination from service was not at all on account of retrenchment or illegal close down and denial of work. Therefore, employer's attempt to characterize this dispute to be an individual dispute is not justified in any manner. The finding of the Labour Court on this aspect needs no interference by this Court.
14. Learned advocate appearing for respondent workmen further submitted that the documents in form of Form to be submitted to the PF Authority, attendance register, should have been submitted but signature of Partners were not there on said documents. Not only that, these documents are said to have been figuring in the list and remaining documents were not produced was based upon their assertion as documents like wage register, attendance register and communication to PF authority. Neither of them is proved as an evidence and therefore, the court has rightly held on behalf of the workmen, which finding may also not be interfered with by this court in exercise of jurisdiction under Article 226 of the Constitution of India.
15. The learned advocate appearing for the respondent contended that the testimony of the management witness and their inability to give correct version and controversy stood reflected in form of affidavit that was filed in earlier petition and written statement, have collectively weighed with the court in accepting the award and rejecting the plea of employer or else it may amount to re-evaluating the facts, which may not be undertaken by this court in exercise of jurisdiction under Article 226 and 227 of the Constitution of India.
16. Shri Chaudhari, learned advocate appearing for respondent further submitted that it is not that there is a document produced and it is not proved. Even no other documents are produced except xerox copy of wage register, but that is also not proved and attendant register is not produced at all.
17. Shri Karia, learned advocate appearing for petitioner has invited this court's attention to the affidavit-in-rejoinder and indicate that on account of sad demise of 19 family members of Partners of the petitioner firm in earthquake and change in management, documents could not be traced and therefore, they were not produced.
18. Learned advocate for the petitioner thereafter invited this court's attention to affidavit filed by one of the workmen, in whose case the settlement is arrived at. Shri Chaudhari, learned advocate for respondent under instructions submitted that said settlement is in fact arrived at and therefore, now the award remained qua remaining workmen.
19. The Court has heard the learned advocates for the parties at length and perused the documents accompanied with the petition.
20. The Court is of the considered view that though the petition has been styled as petition under Articles 226 and 227 of the Constitution of India, the entire tenor of the petition, the non-joining of the Court/Tribunal as a party and lack of requisite averments requiring for invoking Article 226 of the Constitution of India indicate that this petition is required to be treated as one having been filed under Article 227 of the Constitution of India and not under Article 226 of the Constitution of India. The petitioner has not disputed anywhere that the Labour Court did not have any jurisdiction to entertain this Reference nor has there been any challenge to reference order nor has there been any challenge to any statutory order or constitutional illegality touching upon the jurisdictional aspect so as to bring the petition and challenge to award within lubric of Article 226 of the Constitution of India. Hence, the court is of the considered view that this petition is though styled as one filed under Article 226 of the Constitution of India, is required to be treated as petition filed under Article 227 of the Constitution of India and bearing the limitations and examining the challenge under Article 227, the impugned order is required to be examined.
21. The Labour Court has recorded that because of workmen was espoused by the union right from day one, the provisions of Rule 4 of the Rules cannot be treated as having any overriding effect upon the provisions of I.D. Act itself and I.D. Act clearly permits the workmen's cause to be espoused by union as could be seen from definition of Industrial Dispute under Section 2(k) and definition of provisions of Section 2(a) of the Rules. If these two provisions are born in mind, the Rule 4 of the Rules then it would become absolutely clear that the said provisions requiring independent workman to sign only in the event when the dispute is straightway falls under Section 2(a), that too, the court would be constrained to observe that the Rules cannot govern substituted provisions of Act and in the instant case, so far as parent act i.e. I.D. Act is clear in this behalf. The Court need not delve much upon this aspect, suffice it to say that the finding recored by the Labour Court qua maintainability of the reference on the strength of statement of claim, which was not signed by workmen individually, is just and proper and is not required any interference by this court while exercising jurisdiction under Article 227 of the Constitution of India. Hence, now the court shall examine the matter on other aspect.
22. The fact remains to be noted that assertion made by employer in the written statement was in respect of only 6 workmen out of 13 workmen, to be there in their employment, is based upon two documents namely the attendance register and communication with PF authority. The attendant register and PF communication are pleaded to be documentary evidence in support of assertion made and hence it was the duty cast upon the employer to make it good by producing documentary evidence. The court has clearly observed that those documents were not proved and some of documents as submitted by Shri Chaudhari, learned advocate for respondent, have not been produced. In light of this clear finding, the court has to take into consideration the oral testimony of two Partners of petitioner firm, who were offered themselves for cross-examination, wherein, they have admitted that they have not produced any documents justifying their assertion made in the written statement or testimony. In light of this, when the court's findings is recorded in favour of the workman, this court under Article 227 would not interfere with the same.
23. The court is of the considered view that awarding of 50% of back wages in absence of any specific plea on the part of the employer that the workmen were gainfully employed during the interregnum period, and the court has observed that presumption is that the workmen would have never remained unemployed and this assumption is not challenged by the workmen in any way and therefore, this court is of the view that in absence of any challenge or proof in respect of workmen being employed gainfully and workmen challenging the observation of the Court, would call no interference of this court in exercise of jurisdiction under Article 227 of the Constitution of India.
24. In the result, the petition being bereft of merits, deserves rejection and is rejected accordingly. Rule is discharged. Interim relief, if any, stands vacated. There shall be no order as to costs. The amount which has been deposited before this court as per the orders recorded hereinabove, be disbursed to the workmen on their proper identification by account payee cheque, except one, who has settled his dispute as submitted hereinabove.
(S.R.BRAHMBHATT, J.) pallav