State Of Gujarat vs Snehaben Sanjaybhai Barot
2022 Latest Caselaw 5872 Guj

     C/SCA/5838/2018                                  JUDGMENT DATED: 04/07/2022




               IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

                 R/SPECIAL CIVIL APPLICATION NO. 5838 of 2018


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE A.Y. KOGJE                                Sd/-

=============================================

1     Whether Reporters of Local Papers may be allowed to see              NO
      the judgment ?

2     To be referred to the Reporter or not ?                              NO

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

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

=============================================
                                STATE OF GUJARAT
                                      Versus
                       SNEHABEN SANJAYBHAI BAROT & 2 other(s)
=============================================
Appearance:
MR. ROHAN SHAH, AGP for the Petitioner(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 1
NOTICE UNSERVED for the Respondent(s) No. 2,3
=============================================

    CORAM:HONOURABLE MR. JUSTICE A.Y. KOGJE

                                  Date : 04/07/2022

                                  ORAL JUDGMENT

1. RULE. Learned Advocate Mr. U. T. Mishra waives service of rule on behalf of the respondent No.1.

2. This petition under Article-226 of the Constitution of India is filed to quash and set aside the award dated 16-03-2017 passed by the Labour

C/SCA/5838/2018 JUDGMENT DATED: 04/07/2022

Court, Bharuch in Reference (LCB) No.10 of 2011.

3. It is the case where the Reference was raised on account of alleged illegal oral termination of the respondent on 20-07-2010 from the petitioner- Hospital, where it is alleged that the respondent-workman was working as Receptionist since 01-12-2007.

4. It is observed that the proceedings before the Labour Court had proceeded ex-parte and that though the respondent nos.2 and 3 including the petitioner were served with the notice of the Labour Court, none had appeared to defend their case. It was the case before the Labour Court that the petitioner though was engaged through the respondent no.2 and thereafter, the respondent no.3 successively, the said arrangement was only for the name sake and the contract was shame and bogus. Therefore, the respondent-workman is required to be treated as the employee of the petitioner.

5. At the outset, learned AGP states that though there is an alternative remedy available under Rule-26A of the Industrial Dispute (Gujarat) Rules, 1966. However, as the State has approached the Court on the legal ground that though there was issue with regard to the respondent- workman being the contractual labour, there is no findings of the contract being shame and bogus and that such contract has not been set aside. Reliance is placed on the decision of this Court in case of Steel Authority of India Limited v/s. Gujarat Mazdoor Panchayat reported in 2004 (1) GLR 729.

6. Learned Advocate appearing for the respondent No.1 has drawn attention of this Court to the Affidavit in reply has stated that the petition itself is not maintainable in view of the provision of Rule-26A of the Industrial Dispute (Gujarat) Rules, 1966. Learned Advocate has thereafter has drawn attention of this Court to the order dated 23-03- 2022 passed in Special Civil Application No.17861 of 2018 by submitting that where the ex-prate award is to be set aside and remanded back to the Tribunal or the Court, in that case, cost may be

C/SCA/5838/2018 JUDGMENT DATED: 04/07/2022

imposed against the Erring party. It is submitted that record of the Labour Court indicates that all the respondents therein, were served with the notices of the Labour Court, but have chosen not to appear.

7. Having considered the rival submissions of the parties and having perused the documents on record, it is clear that the Reference had proceeded ex-parte and none of the respondents therein, present petitioner as well as the respondent nos.2 and 3 have filed their defense. Therefore, accepting the case of the respondent-workman, the impugned award was passed.

8. The Court however, observes that there is a Reference to the fact that the respondent-workman was initially engaged through the Contractor and after some period, the Contractor had changed, but the respondent no.1 continue to work with the petitioner. However, in the order, there does not appear to be any issue to decide as to whether the contract by the petitioner to the respondent no.2 and thereafter to the respondent no.3 was shame and bogus. As required under the Law particularly in the decision of Steel Authority of India Limited (supra) , wherein in Para-17, the Court has held as under:

"17. The position of law, which emerges from the reported decisions of the Supreme Court, is that workmen working under a contractor are entitled to raise a demand that they should be declared as workmen of the principal employer. It is always open to the workmen concerned to place materials before the industrial adjudicator to show that the contract between the principal employer and the contract labourer is sham or not genuine, and claim declaration that they were always the employees of the principal employer and are entitled to appropriate service conditions. When such a dispute is raised, it is not a dispute for abolition of labour contract. Hence, the provisions of Section 10 of the Act will not bar either the raising, or the adjudication, of such a dispute. When such a dispute is raised, industrial adjudicator has to decide whether the contract is sham or genuine. It is only if adjudicator comes to a conclusion that the contract is sham, then he will have jurisdiction to adjudicate the dispute. If however, he comes to a conclusion that the contract is genuine, he will have to dismiss the reference and may refer the workmen to the appropriate Government for abolition of contract labour under Section 10 of the Act. In the light of abovereferred to

C/SCA/5838/2018 JUDGMENT DATED: 04/07/2022

principles of law, the dispute raised in the petition will have to be considered by this Court. However, before resolving the dispute raised in the petition, it would be relevant to advert to oral evidence adduced by the parties before the Tribunal."

9. This being an important issue, the Labour court ought to have addressed the same. The Court is therefore inclined to quash and set aside the award dated 16-03-2017 passed by the Labour Court, Bharuch in Reference (LCB) No.10 of 2011 and thereby, remanding the matter back to the Labour Court, Bharuch for reconsidering the issue after affording an opportunity of hearing to the petitioner as well as respondent nos. 2 and 3. For this purpose, the Reference be placed before the Labour Court, Bharuch on or before 18-08-2022, wherein the Labour Court, Bharuch may issue notices once again to all the parties for further proceedings. The Labour Court, Bharuch may dispose of the Reference expeditiously.

10. Accepting the contention of respondent no.1, the Court deems it fit to award cost of Rs.10,000/- to respondent no.1. The petitioner shall deposit the same with the Labour Court, Bharuch on or before 31-08- 2022. It will be open for the petitioner to recover the same from respondent nos. 2 and 3, as they have also failed to appear before the the Labour Court, Bharuch. It is open for the respondent to make an application before the the Labour Court, Bharuch for disbursement.

11. The petition stands allowed in the aforesaid terms. Rule is made absolute to the aforesaid extent. Direct service is permitted.

Sd/-

(A.Y. KOGJE, J) PARESH SOMPURA