Pnb Metlife Insurance Co Ltd vs Rohiniben Maheshbhai Dave
2021 Latest Caselaw 14330 Guj

    C/SCA/12562/2018                                     JUDGMENT DATED: 17/09/2021



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

             R/SPECIAL CIVIL APPLICATION NO. 12562 of 2018
                                  With
            CIVIL APPLICATION (FOR DIRECTION) NO. 1 of 2019
            In R/SPECIAL CIVIL APPLICATION NO. 12562 of 2018

FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1    Whether Reporters of Local Papers may be allowed                       No
     to see the judgment ?

2    To be referred to the Reporter or not ?                                Yes

3    Whether their Lordships wish to see the fair copy                      No
     of the judgment ?

4    Whether this case involves a substantial question                      No.
     of law as to the interpretation of the Constitution
     of India or any order made thereunder ?

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                     PNB METLIFE INSURANCE CO LTD
                                 Versus
                  ROHINIBEN MAHESHBHAI DAVE & 1 other(s)
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Appearance:
MR AJAY L PANDAV(3660) for the Petitioner(s) No. 1
MR RAJESH B DESAI(1216) for the Petitioner(s) No. 1
MR DG SHUKLA(1998) for the Respondent(s) No. 1
MR HARSHEEL D SHUKLA(6158) for the Respondent(s) No. 1
NOTICE SERVED(4) for the Respondent(s) No. 2
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    CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA

                                 Date : 17/09/2021
                                 ORAL JUDGMENT

[1] RULE. Learned advocate Mr.D.G.Shukla waives service of notice of rule on behalf of the respondent.

[2] Learned advocate Mr.Dipak Dave for learned advocate Mr.Ajay L. Pandav for the petitioner has submitted that the present writ petition would not

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be maintainable in view of the provisions of Section 4 of the Industrial Dispute (Banking and Insurance) Companies Act, 1949 (for short 'the Act'). He has submitted that it is not in dispute that the present petitioner is an Insurance Company and falls within the definition under Section 2 and hence, Section 4 of the Act bars the State Government or any officer or any authority subordinate to such Government to refer an industrial dispute. Thus, he has submitted that the entire proceedings are nullity and hence, the impugned award is required to be set aside.

[3] In response to the aforesaid submissions, learned advocate Mr.D.G.Shukla has submitted that no such contention was raised before the court below and hence, the Labour Court, Ahmedabad, has precisely passed the award in favour of the workman. Further, it has submitted that in view of the Section 6 of the Act, the Court can still remand the matter to the Central Industrial Disputes Tribunal, while placing the award in abeyance. Further, it is submitted that the respondent-workman had filed an application under the provision of Section 17B claiming the wages during the pendency of the writ petition from the date of filing of the writ petition and hence, the respondent workman may be paid the wages from the date of filing of the writ petition i.e. from 19.04.2018.

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[4] In the present writ petition, the petitioner has challenged the award passed by the Labour Court, Ahmedabad in Reference (LCA) No. 540 of 2014, whereby the petitioner has been directed to reinstate the respondent workman with 20% back wages or all the consequential benefits with continuity of service. It is not in dispute that the petitioner i.e. PNB Metlife India Insurance Co. Ltd. falls within the definition of Section 2 of the Act, which reads as under :-

Section -2 Definitions In this Act, unless there is anything repugnant in the subject or context, the expressions "award", "banking company", "industrial dispute" and "insurance company" have the meanings respectively assigned to them in Section 2 of the Industrial Disputes Act, 1947 (14 of 1947) as amended by this Act.

[5] It is the case of the petitioner that the entire proceeding is nullity under Section 4 of the Act, which reads as under :-

Section 4. Prohibition of references by 1[State] Governments of certain industrial disputes for adjudication, inquiry or settlement.--Notwithstanding anything contained in any other law, it shall not be competent for a State Government or any officer or authority subordinate to such Government to refer an industrial dispute concerning any banking or insurance company, or any matter relating to such dispute, to any tribunal or other authority for adjudication, inquiry or settlement.

[6] A bare perusal of the provision of Section 4 of the Act reveals that it is not competent for a State Government or any Officer or authority subordinate to such Government to refer an industrial dispute concerning any banking or

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insurance company or any matter relating to such dispute, to any tribunal for adjudication, inquiry or settlement. Thus, there is an absolute bar in reference of such dispute in case of an insurance company.

[7] Learned advocate Mr.D.G.Shukla has placed reliance on the provision of Section 6 of the Act, which reads as under :-

Section 6 : Powers of Central Government to refer disputes in respect of which awards or decisions have been made for re- adjudication

(1) Where any award or decision has been made in respect of any industrial dispute concerning any banking or insurance company by any tribunal or other authority constituted or appointed by a State Government, or any officer or authority subordinate to such Government, then the Central Government may, notwithstanding that the said award or decision is in force, by order in writing refer under Section 10 of the said Act the dispute or any of the matters in dispute to an Industrial Tribunal constituted under the said Act for re- adjudication and stay the implementation of the award or decision so made or of any part of such award or decision until the Industrial Tribunal to which the dispute or any of the matters in dispute is referred for re-adjudication has submitted its award or for such further period as the Central Government may consider necessary.

(2) After the Industrial Tribunal to which the dispute or any of the matters in dispute has been so referred for re- adjudication has submitted its award under sub-Section (1) of Section 15 of the said Act the Central Government may, by order in writing, declare that the award or decision previously made in respect of such dispute by the tribunal or other authority constituted or appointed by the State Government or any officer or authority constituted or appointed by the State Government or any officer or authority subordinate to such Government or such part of that award or decision as may be specified in the order shall cease to be in operation.

[8] In order to appreciate true import of the provision of Section 6 of the Act, it should be

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apposite to refer to the provisions of Section 5 of the Act, which reads as under:-

5. Abatement of proceedings relating to disputes pending before1[State] tribunals and reference of such disputes to tribunals constituted by the Central Government.--(1) Where under any law any industrial dispute concerning any banking or insurance company or any matter relating to such dispute has, before the 30th day of April, 1949, been referred by a 1[State] Government or any officer or authority subordinate to such Government to any tribunal or other authority for adjudication or settlement and any proceedings in respect of or arising out of such reference were immediately before that date pending before any tribunal or other authority, then on the aforesaid date such refence shall be deemed to have been withdrawn and all such proceedings shall have abated.

(2) The Central Government shall, as soon as may be after the commencement of this Act, by order in writing, refer under Section 10 of the said Act every industrial dispute to which the provisions of sub-Section (1)apply to an Industrial Tribunal constituted under the said Act for adjudication.

[9] The provisions of Section 6 of the Act cannot be read in isolation and the same are to be read in harmony with provisions of Section 5. Section 5 specifically refers to the disputes, which are referred before 30.04.1949 by the State Government or any officer or any authority. Sub-rule 2 of Rule 6 directs that the Central Government may pass order declaring such award to have been ceased in operation. Section 6 if closely reads, relates to such awards or decisions, which are referred prior to 30.04.1949 and thus, the provision of Section 4 would not apply to those disputes, which relate after promulgation of the Act i.e after 30.04.1949. Section 4 specifically prohibits the references by the State Government or certain industrial dispute for adjudication, inquiry or settlement. Hence, if

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the argument advanced by learned advocate Mr.Shukla is accepted, then the entire purpose of the Act would become redundant and the impact of Section 4 would get obliterated.

[11] Thus, the entire dispute, right from the reference made by the State Government is a nullity and de hors the provision of Section 4 of the Act. As a sequel, the proceedings before the Labour Court resulting in the impugned award which have emanated from the reference are also declared as nullity as there is no power vested in the State Government to refer the dispute. It is well settled proposition of law that the issue of jurisdiction which goes to the root of the matter can be taken at any stage in any proceedings.

[12] Hence, the reference is itself being a nullity, the same is quashed and set aside, as a consequence the impugned award also gets invalidated. It will be open for the respondent workman to raise a fresh industrial dispute before the appropriate authority under the Central Government for reference of the dispute. It is clarified that the time consumed before this Court in the captioned writ petition shall not be considered detrimental to the interest of the workman by the Labour Court.

13. With regard to the payment of wages under

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Section 17B of the I.D.Act is concerned, learned advocate Mr.Shukla has placed reliance on the judgment of the Division Bench rendered in the case of Airport Authority of India vs. Bharat H. Parmar reported in 2011 (1) GLH 347 and in the case of Solaris Chemtech Industries Limited vs. Musa Sakur Sama 2018 LabIC 862. He has submitted that as per the decisions of the Division Benches, the respondent is entitled to the wages under Section 17B during the pendency of the writ petition.

[13] Per contra, learned advocate Mr.Dave has placed reliance on the order dated 24.09.2014 passed by the Division Bench in Letters Patent Appeal No.1043 of 2014. He has submitted that since the proceedings itself are declared as nullity, the question of granting the wages under Section 17B is uncalled for. He has submitted that the tribunal can always take care of the wages, while passing the award as and when the dispute is decided and hence, the same may not be conferred at this stage.

[15 I may with profit refer the observations made in the order dated 24.09.2014 passed in Letters Patent Appeal No. 1043 of 2014 and other allied matters in Paragraph-6, thus:-

"On the aspect of the decision to be rendered first below application for payment of wages under Section 17(B) of the Act is concerned, such cannot be asserted as a blanket proposition but it is always open tot eh Court to simultaneously consider both the aspects. In any case, when the ex-parte award is set aside and if the workman ultimately succeeds in the award and back wages are to be awarded, the question may be required to be considered by the Labour Court but, merely because the

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application under Section 17(B) of the Act was not decided first, it canot be said that the order of the learned Single Judge would be vulnerable. When we are not inclined to interference with the discretion exercised by the learned Single Judge, we need not further examine the aspect of wages available to the workman under Section 17(B) of the Act more particularly because the ex-parte award is set aside and the main reference is yet to be heard and finalised by the Labour Court."

Thus, the Division Bench has refused to examine the aspect of the wages available to the workman under Section 17(B) of the I.D.Act in view of an ex-parte award, which was set aside. In the present case, the entire proceedings are declared as nullity. This Court cannot pass any orders directing the petitioner to grant the wages under Section 17B of the I.D.Act in wake of annulment of the reference. The entire dispute with regard to the payment of the wages can be examined by the Tribunal. In case the Tribunal concludes that the termination of the respondent workman was illegal and de hors the provision of law, it is always open for the Tribunal to grant the back wages, including the wages for the period, for which, the wages under Section 17B are claimed. The judgment, on which reliance has been placed by learned advocate Mr.Shukla, will not come to his rescue since in the cases before the Division Benches, the impugned reference and awards are not declared as nullity.

[17] There is an additional factor which disentitles the respondent from the wages under Section 17B of the I.D.Act. It is also pertinent

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to note that for the period, for which the respondent has claimed the wages under Section 17B of the I.D.Act, the petitioner has specifically contended before this Court by filing an affidavit alleging that the respondent is gainful employed in three companies i.e. Deora Wires N Machines Pvt. Ltd., Gujarat Energy Transmission Ltd. and Vaman Prestressing Co. Ltd. However, learned advocate Mr.Shukla has submitted that the respondent has specifically filed an affidavit denying such employment since no proof or any documentary evidence is produced by the petitioner showing the gainful employment. Since the factum of gainful employment of the respondent workman is also disputed, it will not be appropriate for this court to grant the wages under Section 17B of the Act. The disputed question of the respondent's gainful employment can always be examined by the Tribunal on the evidence lead by both the sides.

[18] In this view of the above, the writ petition succeeds. The impugned award dated 23.01.2018 passed by Labour court, Ahmedabad, is quashed and set aside. In view of the aforesaid directions, the civil application is disposed of. Rule is made absolute.

(A. S. SUPEHIA, J) NABILA