C/SCA/3707/2023 ORDER DATED: 15/03/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 3707 of 2023
==========================================================
THE PRESIDENT, GIDC EMPLOYEES UNION NAIM SHEIKH
Versus
THE MEDICAL SUPERINTENDENT
==========================================================
Appearance:
MR A A ZABUAWALA(6823) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
==========================================================
CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT
Date : 15/03/2023
ORAL ORDER
1. The present petition is filed by the petitioner by challenging the impugned judgment and order passed by learned Presiding Officer, Industrial Tribunal No.2, Vadodara in Reference (IT) Case No.241 of 2014 dated 25.11.2021, by which the learned Tribunal has rejected the Reference of the present petitioner. 2.1 Brief facts of the case are as such that the petitioner is union firm and workers under the union are the members of this union. It is the case of the petitioner that workers of the union are working with the respondent No.2 under contract basis since long time and also working with the respondent No.1 herein and Page 1 of 9 Downloaded on : Mon Mar 20 20:34:53 IST 2023 C/SCA/3707/2023 ORDER DATED: 15/03/2023 therefore, the case of the petitioner is that the petitioner is working with the respondent No.1 and there are many persons from the union, who are working as workers on different posts such as ward boy, male sweeper, fee sweeper, etc. since long time. Since they are working with the respondent No.1, the workers of the union had raised the demand for regularization of their services and to consider the workers as workers of the respondent No.1 as being permanent employees. Such demand of the workers was not considered, and therefore, a Reference (IT) Case No.241 of 2014 came to be filed before the authority.
2.2 After filing of statement of demand at Exh.9, respondent No.2 has filed written statement at Exh.15 by submitting that there is no question to entertain such Reference and the Reference is not entertainable in view of Section 2K of the Industrial Disputes Act, 1947. It is also admitted in the said written statement that such workers are the employees of the respondent No.2 and they are working on contract and they have been given the necessary benefits viz., ESI facility, provident fund facility and identity card, etc. It is also averred in the Page 2 of 9 Downloaded on : Mon Mar 20 20:34:53 IST 2023 C/SCA/3707/2023 ORDER DATED: 15/03/2023 written statement that respondent No.1 - the Medical Superintendent, Sterling Hospital has no relation about the services of workers of respondent No.2 and they are not the permanent employees of respondent No.1 - hospital.
2.3 Thereafter, the respondent No.1 has filed written statements by contending various points in defence and has prayed that there is no relation between the present petitioner and respondent No.1, and therefore, the Reference is required to be rejected in addition to other grounds raised in the written statement, the Reference is required to be dismissed.
2.4 Thereafter, the respective parties have examined their witnesses. One Harijan Ashok Parasottambhai is examined at Exh.40 and Bariya Gopal Gambhirbhai is examined at Exh.41.
2.5 The documentary evidences have also been produced at Exh.22/1, 23/1, 24/1, etc. till 36/35. The respondent No.1 has produced the deposition one Sthitipragnya Kantilal Shah at Exh.71. He has also produced Page 3 of 9 Downloaded on : Mon Mar 20 20:34:53 IST 2023 C/SCA/3707/2023 ORDER DATED: 15/03/2023 documentary evidences at Exh.19/1 to 19/3, 53/1 to 53/6, 65/1 to 65/2, 86/1 to 86/6. The respondent No.2 has also produced the document evidences at Exh.62/01 to 62/15, 68/1 to 68/10, 74/1 to 74/14, 89/1 to 89/4. Thereafter, the closing pursis are given by respective parties and the learned Industrial Tribunal has framed the issues for its determination. After considering the materials available on the record, the Reference is dismissed by order dated 25.11.2021.
3. Learned advocate for the petitioner has submitted that the impugned judgment and order passed by the Reference Court is not in accordance with law. He has further submitted that the learned Labour Court has erred in not considering that the workers of the petitioner No.1 are working with the respondent No.1 since long time on different posts. He has further submitted that there is no single document on record to suggest that the respondent No.1 herein has declared about actual status of the petitioner, and therefore, impugned judgment and order passed by learned Reference Court is apparently improper and illegal and is required to be interfered with by this Court by Page 4 of 9 Downloaded on : Mon Mar 20 20:34:53 IST 2023 C/SCA/3707/2023 ORDER DATED: 15/03/2023 exercising powers under Article 227 of the Constitution of India.
4.1 I have heard learned advocate for the petitioner at length for admission of the petition. I have perused the order passed by the learned Industrial Tribunal. I have also gone through the other Annexures annexed with the present petition such as; statement of claim and written statements filed by the respective respondents. 4.2 It clearly transpires that respondent No.2 has categorically stated in its written statement that the respondent No.1 - Medical Superintendent, Sterling Hospital has no connection whatsoever with the workers of the respondent No.2 as respondent No.2 is supplying the employees to respondent No.1 on contract basis and respondent No.2 is providing the necessary benefits viz., identity card, attendance card, ESI facilities and Provident Fund to the workers concerned. This fact is rightly considered by the Tribunal as this is categorical averment, which is available on the record. 4.3 It is also found from the record that the placement Page 5 of 9 Downloaded on : Mon Mar 20 20:34:53 IST 2023 C/SCA/3707/2023 ORDER DATED: 15/03/2023 of contract was for the period from 2008 to 2018 and the documentary evidence, which is produced on the record i.e. pay slip, etc., are also issued by the respondent No.2 - contractor, and therefore, the Tribunal has rightly considered the various judgments reported in
(i) 1978 (0) A.I.J.E.L. Supreme Court 11397 in the case of Hussainbhai Calicutt Versus Alath Factory, (ii) 1992 (2) LLJ 782 in the case of K.K. Thilakan And Others Versus Fact Limited, (iii) 2002 (4) LLN 985 Supreme Court in the case of Gujarat Kamdar Panchayat Versus Maize Producers, (iv) 2016 (4) LLN 453 in the case of M.P. High Court Birla Corporation Versus Deputy Labour Commissioner, (v) 2016 (4) LLN 592 in the case of Allahabad High Court, Branch Manager Prathan Bank Versus State of U.P. And Others , whereby the Hon'ble Courts have found that when the employee is working as worker of the contractor, then the Reference could be considered against the original employer and not against the other person.
4.4 Learned Labour Court has relied upon the judgment of this Court in the case of Gujarat High Court Versus N.D.D.B. Employees Union reported in 2011 (3) GLR Page 6 of 9 Downloaded on : Mon Mar 20 20:34:53 IST 2023 C/SCA/3707/2023 ORDER DATED: 15/03/2023 2360, where the Court has found that if the Reference is made about the genuineness of contract labour system and the Reference is made for the specific purpose then only the learned Labour Court can consider such Reference and the learned Labour Court cannot consider any matter beyond the terms of Reference and neither the learned Labour Court can enlarge the scope of Reference.
4.5 In the judgment of the Hon'ble Apex Court in the case of Steel Authority of India reported in 2006 (4) LLN 651, Hon'ble Supreme Court has categorically held that when the contractor is admitting that the workers are working as contractor's labourer/worker then the Reference cannot be proceeded against the main owner of the place where the workers are working and the Court has also considered various judgments of the Hon'ble Apex Court reported in (i) 1992 (1) LLJ 475 (ii) 2011 (1) LLN 368 (iii) 2014 (2) SCC 368 (v) 2014 (2) SCC 353 and other judgments, which are referred in the impugned judgment and had come to the conclusion that the Reference, made by the authority pursuant to the grievance made by the present petitioner is not Page 7 of 9 Downloaded on : Mon Mar 20 20:34:53 IST 2023 C/SCA/3707/2023 ORDER DATED: 15/03/2023 entertained and has rightly rejected the same by considering the fact that the respondent No.2 has categorically accepted that the petitioner - workers are working with the respondent No.2 and respondent No.2 is having contract with respondent No.1 during the period from 2008 to 2018, and therefore, no relief prayed in terms of Reference or no case of the petitioner can be considered as stated in the statement made by the learned Labour Court. Such findings are in accordance with law and by considering the materials available on the record.
4.6 I found that there is no perversity or illegality committed by the learned Labour Court in the finding about the maintainability of the Reference and more particularly, rejecting the Reference filed by the present petitioner.
4.7 I found that there is no justifiable reason to exercise my powers more particularly supervisory powers under Article 227 of the Constitution of India as no infirmity or illegality is committed by the learned Labour Court by deciding the case on merits after considering Page 8 of 9 Downloaded on : Mon Mar 20 20:34:53 IST 2023 C/SCA/3707/2023 ORDER DATED: 15/03/2023 the materials available on the record and such findings are in consonance with the provisions of law, and therefore, no interference is required to be called for and the present petition is required to be dismissed.
5. In view of the above observations, the present petition is dismissed.
(SANDEEP N. BHATT,J) DIWAKAR SHUKLA Page 9 of 9 Downloaded on : Mon Mar 20 20:34:53 IST 2023