Gujarat High Court
Gujarat Kamgar Panchayat vs Director, Gujarat Cancer ... on 23 February, 2022
Bench: A.S. Supehia
C/SCA/5989/2021 JUDGMENT DATED: 23/02/2022
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 5989 of 2021
With
R/SPECIAL CIVIL APPLICATION NO. 5990 of 2021
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE A.S. SUPEHIA
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1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy
of the judgment ?
4 Whether this case involves a substantial question
of law as to the interpretation of the Constitution
of India or any order made thereunder ?
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GUJARAT KAMGAR PANCHAYAT
Versus
DIRECTOR, GUJARAT CANCER RESEARCH INSTITUTE
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Appearance:
MR VYOM H SHAH(9387) for the Petitioner(s) No. 1
MR SUDHIR NANAVATI, SENIOR ADVOCATE with
MR VANDAN K BAXI(5863) for the Respondent(s) No. 1
MS PRACHITI V SHAH(9990) for the Respondent(s) No. 1
NANAVATI & NANAVATI(1933) for the Respondent(s) No. 1
DELETED for the Respondent(s) No. 2
MR HARDIK MEHTA, AGP for the Respondent(s) No. 3
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CORAM:HONOURABLE MR. JUSTICE A.S. SUPEHIA
Date : 23/02/2022
ORAL JUDGMENT
1. RULE. Learned advocates appear and waive service of
notice of Rule on behalf of the respective respondents.
C/SCA/5989/2021 JUDGMENT DATED: 23/02/2022
2. A short issue is involved in both the present writ petitions
whether the order passed by the Industrial Court, Ahmedabad
dated 15.03.2021 in Reference (IT) Nos.29 of 2019 and 26 of
2019 relegating the present petitioner to file an application or
avail the efficacious adjudication of the dispute under Section
10(5) of the Industrial Disputes Act, 1947 (hereinafter referred
as the "I.D.Act"), is legal or not.
3. The facts which are not disputed by either of the parties
is that the petitioner is a registered Union, who initiated the
references for the claim of a particular pay-scale.
4. The conciliation proceedings were initiated, which
culminated into Reference (IT) Nos.29 of 2019 and 26 of 2019.
During the pendency of the references, the petitioner-Union,
when they came to know that in fact the respondent No.1 is a
grant-in-aid institute receiving 100% grant from the State
Government, it made an application to join the State
Government as a respondent in the pending reference, as per
the provisions of Section 18 of the I.D. Act.
5. By the impugned order, the Industrial Court has directed
the present petitioner to file an application under Section 10(5)
of the I.D. Act.
6. Learned advocate Mr.Shah, appearing for the petitioner
has submitted that in fact, under the provisions of Section
18(3)(b) of the I.D. Act, the Industrial Court should have
directly added the State Government, as a party respondent
since the Institute is a fully grant-in-aid institute and
conferment of the pay-scale depends upon sanction of the
C/SCA/5989/2021 JUDGMENT DATED: 23/02/2022
State Government and until and unless such grant-in-aid is
released to the respondent-Institute, the petitioner would not
got the pay-scale. In support of his submissions, he has placed
reliance on the judgment of High Court in the case of Hotchtief
Gammon Vs. Industrial Tribunal, Bhubaneshwar, Orrisa and
Ors., AIR 1964 SC 1746. Thus, it is submitted that the
impugned orders may be set aside.
7. In response to the submissions made by the learned
advocate for the petitioner, learned senior advocate
Mr.Nanavati, has submitted that no interference is required in
the order passed by the Industrial Court. However, it is not
denied by him that in fact the respondent-Institute is a fully
grant-in-aid institute and the State Government would be a
necessary party, so that the industrial dispute can be
adjudicated. He has submitted that the very same judgment,
on which reliance is placed by learned advocate Mr.Shah, holds
that for addition of any parties, an application under Sections
10(4) and 10(5) of the I.D. Act, is required to be made and the
Industrial Court has no power to add or issue summon, to any
parties under section 18(3)(b) of the I.D. Act, which are not
parties to the reference proceedings.
8. Thus, it is submitted that the order may not be disturbed
and it is always open for the petitioner to file an application
under Section 10(5) of the I.D. Act, as ordered by the Industrial
Court.
9. Learned Assistant Government Pleader Mr.Mehta, has
also adopted the arguments advanced by the learned senior
advocate. However, he has further submitted that right from
C/SCA/5989/2021 JUDGMENT DATED: 23/02/2022
the beginning, the petitioner-Union was aware that the
respondent-Institute is grant-in-aid hospital and that was within
their knowledge, however they did not make efforts to join the
State Health and Welfare Department as a party respondent
and hence, the only option is left with them to file an
application under Section 10(5) of the I.D. Act.
10. I have heard the learned advocates for respective parties
to the lis. I have also perused the relevant documents.
11. As stated hereinabove, the issue raised in the writ
petition is in a narrow-compass. The issue is whether the order
passed by the Industrial Court relegating the present petitioner
for availing the remedy under Section 10(5) of the I.D. Act, is
just and proper or the Industrial Court can add a party, while
exercising powers by resorting to the provision under section
18(3)(b) of the Act.
12. Sections 10(5) and 18(3)(b) of the I.D.Act, 1947 read as
under:
"SECTION 10 : Reference of disputes to Boards, Courts or Tribunals
(5) Where a dispute concerning "any establishment or establishments has
been, or is to be, referred to a 301 [Labour Court, Tribunal or National
Tribunal] under this section and the appropriate Government is of opinion,
whether on an application made to it in this behalf or otherwise, that the
dispute is of such a nature that any other establishment, group or class of
establishments of a similar nature is likely to be interested in or affected by,
such dispute, the. appropriate Government may, at the time of making the
reference or at any time thereafter but before the submission of the award,
include in that reference such establishment, group or class of
establishments, whether or not at the time of such inclusion any dispute
exists or is apprehended in that establishment, group or class of
establishments.
SECTION 18 : Persons on whom settlements and awards are binding
[(3)]A settlement arrived at in the course of conciliation proceedings under
this Act 337 [or an arbitration award in a case where a notification has been
issued under sub-section (3A) of section 10A] or 338 [an award 339 [of a
Labour Court, Tribunal or National Tribunal] which has become enforceable]
shall be binding on-
C/SCA/5989/2021 JUDGMENT DATED: 23/02/2022
(a) all parties to the industrial dispute;
(b) all other parties summoned to appear in the proceedings as parties to
the dispute, unless the Board, 340 [arbitrator], 341 [Labour Court, Tribunal
or National Tribunal], as the case may be, records the opinion that they
were so summoned without proper cause;"
13. The Apex Court in the case of Hotchtief Gammon
(supra), after analyzing the provisions of Sections 10(4),
10(5) and Section 18(3)(b) of the I.D. Act, has held as under:
"8. Section 10(4) which was also added by the same amending
Act provides, inter alia, that the jurisdiction of the Indus- trial Tribunal
would be confined to the points of dispute specified by the order of
reference, and adds that the said jurisdiction may take within its
sweep matters incidental to the said points. In other words, where
certain points of dispute have been referred to the Industrial Tribunal
for adjudication, it may, while dealing with the said points, deal with
natters incidental thereto, and that means that if, while dealing with
such incidental matters, the Tribunal feels that some persons who are
not joined to the reference should be brought before it, it may be able
to make an order in that behalf under s. 18(3)(b) as it now stands.
9. Section 10(5) has now conferred power on the appropriate
Government to add to, the reference other establishments, groups or
classes of establishments of a similar nature, if it is satisfied that these
establishments are likely to be interested in, or affected by, such
dispute. In other words, if industrial dispute is referred to a Tribunal for
adjudication, and in area within the territorial jurisdiction of the
appropriate Government there are other establishments which would
be affected by, or interested in, such a dispute, the appropriate
Government may add them to the said reference either at the time
when the reference is initially made, or during the pendency of the
said reference proceedings; but in every case, such additions can be
made before the award is submitted. Now, if such persons are added
to the reference, the industrial Tribunal may in exercise of its powers
under s. 18(3)(b) summon them to appear before it.
10. Section 18(b) with which we began, has also been amended
by Act 36 of 1956, and it has now been renumbered. As a result. s.
18(b) is now included in s. 18(3)(b). Section 18(3) provides, inter- alia,
that an award passed by an Industrial Tribunal which has become
enforceable shall be binding on:
(a) all parties to the industrial disputes;
(b) all other parties summoned to appear in the proceedings as parties
to the dispute, unless the, Tribunal records the opinion that they were
so called without proper cause.
11. xxxxx
12. Reverting then to the question as to the effect of the power
which is implied in s. 18(3)(b), it is clear that this power cannot be
exercised by the Tribunal so as to enlarge materially the scope of the
C/SCA/5989/2021 JUDGMENT DATED: 23/02/2022
reference itself, because basically the jurisdiction of the Tribunal to
deal with an industrial dispute is -derived solely from the order of
reference passed by the appropriate Government under s. 10(1). What
the Tribunal can consider in addition to the disputes specified in the
order of reference, are only matters, incidental to the said disputes;
and that naturally suggests certain obvious limitations on the implied
power of the Tribunal to add parties to the reference before it,
purporting to exercise its implied power under s. 18(3)(b). If it appears
to the Tribunal that a party to the industrial dispute named in the
order of reference does not completely or adequately represent the
interest either on the side of the employer, or on the side of the
employee, it may direct that other persons should be joined who
would be necessary to represent such interest. If the employer named
in a reference does not fully represent the interests of the employer as
such, other persons who are interested in the undertaking of the
employer may be joined. Similarly, if the unions specified in the
reference do not represent all the employees of the undertaking, it
may be open to the Tribunal to add such other unions as it may deem
necessary. The test always must be, is the addition of the party
necessary to make the adjudication itself effective and enforceable? In
other words, the test well be, would the non-joinder of the party make
the arbitration proceedings ineffective and unenforceable? It is in the
light of this test that the implied power of the Tribunal to add parties
must be held to be limited.
18. The result is, though we accept Mr. Chatterjee's argument that
s. 18(3)(b) postulates the existence of an implied power in the Tribunal
to add parties and summon them, in the present case that power
cannot be exercised, because having regard to the limited nature of
the implied power, M/s Hindustan Steel Ltd. cannot be regarded as a
necessary party under the provisions of s. 18(3)(b). The appeal
accordingly fails and is dismissed with costs ."
14. A perusal of the observations made by the Supreme
Court in the afore-noted case will suggest that the Supreme
Court has categorically held that if it appears to the Industrial
Court that a party to the industrial dispute named in the order
of reference does not completely or adequately represent the
interest either on the side of the employer, or on the side of
the employee, it may direct that other persons should be
joined, who would be necessary to represent such interest. If
the employer named in a reference does not fully represent
the interests of the employer as such, other persons, who are
interested in the undertaking of the employer, may be joined.
14.1 The Supreme Court has asserted that the only test would
be that the addition of the party is necessary to make the
C/SCA/5989/2021 JUDGMENT DATED: 23/02/2022
adjudication effective and enforceable or in other words, the
non-joinder of a party will make the proceedings ineffective
and unenforceable. In the present case, as admitted by the
respondent-Institute that it is fully grant-in-aid institute, run by
the funds of the State Government, and is a necessary party,
but the only objection is raised with regard to the powers to be
exercised by the Industrial Court under section 18(3)(b) of the
I.D. Act. The petitioner is claiming the pay-scales in such
eventuality, if the State Government denies the grant-in-aid to
the respondent-Institute, the same would make a direct impact
on the claim of the petitioner. The adjudication of the entire
dispute will be futile in absence of the state government which
is funding the respondent-Institute. Thus, as per the
observations of the Apex Court, for effective and impartial
adjudication, the Industrial Court should have exercised its
power under the provision of section 18(3)(b) of the I.D.Act.
15. Thus, the Industrial Court has fell in error in relegating
the petitioner to approach under the provisions of Section
10(5) of the I.D.Act. The impugned orders are hereby quashed
and set aside. The matter is remanded back to the Industrial
Court, Ahmedabad. The applications below Exh.9 and Exh.10
are restored in its original file and the same shall be decided in
accordance with law, after hearing the respective parties,
keeping in mind the observations made by this Court.
16. In view of the above, both writ petitions are allowed. Rule
is made absolute.
(A. S. SUPEHIA, J)
MAHESH BHATI/02-03
