Maheshbhai Virabhai Patel vs Chief Officer
2021 Latest Caselaw 4140 Guj

           C/SCA/8688/2020                                                ORDER



           IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
             R/SPECIAL CIVIL APPLICATION NO. 8688 of 2020
                                With
            R/SPECIAL CIVIL APPLICATION NO. 13051 of 2020
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                          MAHESHBHAI VIRABHAI PATEL
                                   Versus
                               CHIEF OFFICER
================================================================
Appearance:
MRS KRISHNA G RAWAL(1315) for the Petitioner(s) No. 1
MR SUNIL S JOSHI(2925) for the Respondent(s) No. 1
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 CORAM: HONOURABLE MR. JUSTICE A.G.URAIZEE
                    Date : 15/03/2021
                 COMMON ORAL ORDER

1. Rule returnable forthwith. Mr. Sunil Joshi, learned advocate waives service of notice of rule on behalf of the respondent in Special Civil Application 8688 of 2020 and Mrs. Krishna G. Rawal, learned advocate waives service of notice of rule on behalf of the respondent in Special Civil Application No.13051 of 2020.

2. In these two petitions emanates from the selfsame judgment and order dated 27/12/2019 passed by learned labour court, Godhara and I.D. Complaint No.1 of 2003 in Reference Demand No.5 of 1997. Hence they are being disposed of by this common judgment.

3. Both these petitions are taken up for final disposal with consent of learned advocate for the parties as the issue involved moves in a narrow compass.

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4. For the shake of convenience facts are taken from Special Civil Application No.8688 of 2020 preferred by the workman. For the shake of convenience parties shall be referred to as the "workman" and "the Municipality" hereafter. The facts are as under:­

4.1 The workman was working with Santrampur Nagar Panchayat since more than 23 years. The workman along­with other similarly situated workmen preferred Reference Demand No.5 of 1997 in the labour court, Godhara through the union for regularization of services on the sanctioned setup. During the pendency of the Reference, the workman apprehended that his services were likely to be terminated by Nagar Panchayat. He, therefore, preferred Complaint Application No.1 of 1997 in Reference Demand No.5 of 1997 for restraining the Municipality or its Officer from terminating or altering the condition of his services. The labour Court vide order dated 10/03/2003 passed ex­parte order by directing the Municipality to maintain status quo with regard to status of service condition till 24/03/2003. The interim injunction was thereafter not extended by the labour Court in absence of an application in that regard by the workman. The Municipality came to know about the lapse of the interim order only in the year 2019 the

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Municipality, therefore, by order dated 05/07/2019 terminated the service of the workman. The labour Court by the impugned judgment and order dated 27/12/2019 allowed the Complaint Application No.1 of 2003 in Reference Demand No.5 of 1997 and directed the Municipality to reinstate the workman without back­wages.

5. The workman is aggrieved by denial of back­ wages while the Municipality is aggrieved by the order of reinstatement. Both of them have, therefore, assailed the selfsame judgment and order of the labour Court by preferring two separate petition.

6. I have heard Ms. Krishana Rawal, learned advocate for the workman and Mr. Sunil Joshi, learned advocate for the Municipality.

7. Ms. Rawal, learned advocate for the workman has essentially submitted that the services of the petitioner came to be terminated in breach of Section 33 of the Industrial Dispute Act ("I.D. Act" for short) during the pendency of Reference Demand No.5 of 1997. According to her submission, the labour Court has, therefore, not committed any error in directing the Municipality to reinstate the petitioner in service. However, she submits that since the services of the workman were terminated during the pendency of Reference

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Demand, the labour Court ought to have directed reinstatement with full back­wages. She, therefore, submits that the petition preferred by the workman may be allowed and the judgment and order of the labour Court may be modified and Municipality may be directed to reinstate the petitioner with full back­wages and the petition preferred by the Municipality may be dismissed.

8. Mr. Joshi, learned advocate for the Municipality submits that the Court below has failed to appreciate that the workman was working as a Supervisor, and therefore, was not workman as defined in Section 2(s) of the I.D. Act. He further submits that the labour Court has fallen in error in holding that the services of the workman were terminated in breach of Section 33 of the I.D. Act as he was not appointed against the sanctioned post.

9. Mr. Joshi, learned advocate for the Municipality has drawn the attention of this Court to the additional affidavit filed by the Chief Officer of the Municipality to content that now the Municipality has unanimously decide to reinstate the workman on condition of his foregoing the claim for back­wages. However, since the workman has preferred a petition, the Regional Commissioner for Municipalities,

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Vadodara has instead of according approval to the Resolution directed the Municipality to prefer appropriate proceedings to assail the judgment and order of the labour Court though the petition had already been preferred by the Municipality before seeking approval to reinstate workman. He, therefore, submits that appropriate order may be passed.

10. I have given my thoughtful consideration to the rival submissions.

11. It is an undisputed fact that the workman and the Municipality had preferred Reference Demand No.5 of 1997 in the labour Court, Godhara for regularization of his services. It is also an undisputed fact that the workman had taken up Complaint Application No. 1 of 1997 in said reference for protecting his services and services condition. It is also an undisputed fact that initially an ex­parte injunction granted by the labour court in the Complaint Application and Municipality was restrain from altering the service condition of the workman till the returnable date. However, therefore, the workman did not take steps for extension of interim injunction.

12. Be it as it may, in the back­drop of above facts, provisions of Section 33 of the I.D. Act

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need to be considered. Section 33 of the I.D. Act reads as under:­

"Section 33 : Conditions of service, etc., to remain unchanged under certain circumstances during pendency of proceedings (1) During the pendency of the any conciliation proceeding before a conciliation officer or a Board or of any proceeding before [an arbitrator or] a Labour Court or Tribunal or National Tribunal in respect of an industrial dispute, no employer shall:­

(a) in regard to any matter connected with the dispute, alter, to the prejudice of the workmen concerned in such dispute, the conditions of service applicable to them immediately before the commencement of such proceedings; or

(b) for any misconduct connected with the dispute, discharge or punish, whether by dismissal or otherwise, any workmen concerned in such dispute, Save with the express permission in writing of the authority before which the proceeding is pending.

(2) During the pendency of any such proceeding in respect of an industrial dispute, the employer may, in accordance with the standing orders applicable to a workman concerned in such dispute [or, where there are no such standing orders, in accordance with the terms of the contract, whether express or implied, between him and the workman],

(a) Alter, in regard to any matter not connected with the dispute, the conditions of service applicable to that workman immediately before the commencement of such proceeding; or

(b) For any misconduct not connected with the dispute, discharge or punish, whether by dismissal or otherwise, that workman: Provided that no such workman shall be discharged or dismissed, unless he has been paid wages for one month and an application has been made by the employer to the

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authority before which the proceeding is pending for approval of the action taken by the employer.

(3) Notwithstanding anything contained in sub­section (2), no employer shall, during the pendency of any such proceeding in respect of an industrial dispute, take any action against any protected workman concerned in such dispute­

(a) By altering, to the prejudice of such protected workman, the conditions of service applicable to him immediately before the commencement of such proceedings; or

(b) By discharging or punishing, whether by dismissal or otherwise, such protected workman,

Save with the express permission in writing of the authority before which the proceeding is pending.

(4) In every establishment, the number of workmen to be recognized as protected workmen for the purpose of sub­section (3) shall be one per cent of the total number of workmen employed therein subject to a minimum number of five protected workmen and a maximum number of one hundred protected workmen and for the aforesaid purpose, the appropriate Government may make rules providing for the distribution of such protected workmen among various trade unions, if any, connected with the establishment and the manner in which the workmen may be chosen and recognized as protected workmen.

(5) Where an employer makes an application to a conciliation officer, Board, [an arbitrator, a] Labour Court, Tribunal or National Tribunal under the proviso to sub­ section (2) for approval of the action taken by him, the authority concerned shall, without delay, hear such application and pass, [within a period of three months from the date of receipt of such application] such order in relation thereto as it deems fit:]

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[Provided that where any such authority considers it necessary or expedient so to do, it may, for reasons to be recorded in writing, extend such period by such further period as it may think fit:

Provided further that no proceedings before any such authority shall lapse merely on the ground that any period specified in this sub­section had expired without such proceedings being completed.]"

13. It is thus eminently clear from the provisions of Section 33 of the I.D. Act that when the reference is pending in the labour court, the service condition of workman may be changed without permission in writing of the labour Court.

14. Section 33(A) of the I.D. Act provides as under:­

"Section 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 before a conciliation officer, Board, an arbitrator, a Labour Court, Tribunal or National Tribunal], any employee aggrieved by such contravention may, make a camplaint 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,

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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 referr ed 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.]"

15. As the workman apprehended termination during the pendency of the reference he had preferred an application under Section 33(A) of the I.D. Act as the labour court found that the services of the workman are terminated during the pendency of the reference, the service ought not to have been terminated. The perusal of the impugned judgment reveals that the labour Court has considered all relevant factors and the provisions of Sections 33 and Section 33(A) of the I.D. Act and has by reasoned order direct the Municipality to reinstate the workman without back­wages.

16. Considering the overall facts of the case, I am of the view that the direction to reinstate the workman does not suffer from any illegality or perversity to warrant interference in the proceedings under Article 227 of the Constitution of India.

17. So fas as back­wages are concerned, it is trite that workman has to make out a case and

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demonstrate before the Court that during the interregnum period he was not gainfully employed. However, the perusal of the impugned judgment does not indicate that the workman had demonstrated before the labour court that during the interregnum period he was not gainfully employed. I am, therefore, of the view that the labour Court has not committed any error in denying back­wages to the workman while directing the Municipality to reinstate him.

18. In view of the above, I am of the view that the impugned judgment and order of the labour court does not suffer from any illegality or perversity for warranting interference under Article 227 of the Constitution of India.

19. The of­shoot of the aforesaid discussion is that both these petitions are devoid of merit and are hereby dismissed. Rule is discharged.

(A.G.URAIZEE, J)

Manoj