Gujarat High Court
Jamnagar Municipal Corporation vs Mora Ranabhai on 19 April, 2023
Bench: Hasmukh D. Suthar
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/LETTERS PATENT APPEAL NO. 95 of 2023
In
R/SPECIAL CIVIL APPLICATION NO. 1266 of 2018
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In
R/LETTERS PATENT APPEAL NO. 95 of 2023
With
R/LETTERS PATENT APPEAL NO. 100 of 2023
In
SPECIAL CIVIL APPLICATION NO. 1273 of 2018
With
CIVIL APPLICATION (FOR INTERIM RELIEF) NO. 1 of 2022
In
R/LETTERS PATENT APPEAL NO. 100 of 2023
In
SPECIAL CIVIL APPLICATION NO. 1273 of 2018
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI : Sd/-
and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR : Sd/-
=======================================================
1 Whether Reporters of Local Papers may be NO
allowed to see the judgment ?
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the
fair copy of the judgment ? NO
4 Whether this case involves a substantial
question of law as to the interpretation
of the Constitution of India or any NO
order made thereunder ?
=======================================================
JAMNAGAR MUNICIPAL CORPORATION
Versus
MORA RANABHAI
=======================================================
Page 1 of 14
Downloaded on : Thu Apr 20 20:49:02 IST 2023
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
Appearance:
MR HS MUNSHAW for the Appellant(s) No. 1
MR UT MISHRA for the Respondent(s) No. 1,2,3,4,5,6,7
for the Respondent(s) No. 8
=======================================================
CORAM:HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI
and
HONOURABLE MR. JUSTICE HASMUKH D. SUTHAR
Date : 19/04/2023
COMMON ORAL JUDGMENT
(PER : HONOURABLE MR. JUSTICE VIPUL M. PANCHOLI)
1. Since the issue involved in both these appeals is
with regard to the disputes related to the
reinstatement and backwages, both these appeals
are heard together and are being disposed of by
this common order and facts of Letters Patent
Appeal No.100/2023 are considered.
2. Both these appeals are filed under Clause 15 of
the Letters Patent against the order rendered by
the learned Single Judge, whereby learned Single
Judge has dismissed the petitions filed by the
appellant - original petitioner.
3. Heard learned advocate, Mr. H.S. Munshaw for the
appellant - original petitioner and learned
advocate, Mr. U.T. Mishra for the respondent nos.1
to 7.
4. Learned advocate, Mr. Munshaw appearing for the
appellant - original petitioner submitted that the
respondents were offered work for the scarcity
relief work during the period between 1999 to 2001
and immediately thereafter, they filed Reference
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
(IT) No.80/2001 before the Industrial Tribunal and
during the pendency of the said reference, the
respondents filed an application under Section
10(4) of the Industrial Disputes Act, 1947
(hereinafter referred to as "ID Act" for short),
wherein the respondents prayed that interim relief
be granted in favour of the respondents by
directing the appellant - original petitioner that
the services of the respondents may not be
terminated. It is submitted that the said
application came to be disposed of. It is further
submitted that the respondents alleged that on
15.07.2002, their services were terminated without
seeking approval from the concerned Industrial
Tribunal, Jamnagar and, therefore, the respondents
filed an application under Section 33(A) of the ID
Act. It is submitted that the Industrial Tribunal,
vide order dated 10.03.2017, partly allowed the
said application and thereby directed the
appellant - petitioner that the respondents be
reinstated with 50% backwages.
5. Learned advocate further submits that the
appellant - petitioner, therefore, filed captioned
petition challenging the award passed by the
Industrial Tribunal and the learned Single Judge,
vide impugned order, dismissed the said petition,
therefore, the appellant - original petitioner has
preferred the present appeals.
6. Learned advocate has assailed the impugned order
by contending that the respondents were offered
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
work for scarcity relief for water supply and they
had worked for one and half years only, thereafter
immediately, they filed Reference before the
Industrial Tribunal for regularization of
services. It is submitted that as the work, for
which the respondents were engaged, was over, in
the year 2002, their services were terminated on
15.07.2002. It is further submitted that in the
present case, provisions of ID Act are not
applicable, inspite of that, the Industrial
Tribunal passed an award, by which, the direction
was issued to reinstate the the respondents with
50% backwages. It is also contended that the
learned Single Judge has wrongly placed reliance
upon the decision rendered by the HOn'ble Supreme
Court in case of Jaipur Zila Sahkari Bhoomi Vikas
Bank Ltd. Vs. Shri Ram Gopal Sharma & Ors.,
reported in 2002 (92) FLR 667. Learned advocate,
therefore, urged that the impugned order be set
aside.
7. Alternatively, learned advocate submitted that the
Labour Court has committed an error while awarding
50% backwages to the respondents. It is submitted
that the Industrial Tribunal has not assigned any
reason while awarding 50% backwages to the
respondents. Learned advocate has referred to the
observations made by the Tribunal in Paragraph
No.20 of the award, which was under challenge
before the learned Single Judge. Learned advocate,
therefore, urged that this Court may set aside the
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
award passed by the Tribunal to the extent of
granting 50% backwages to the respondents.
8. On the other hand, learned advocate, Mr. Mishra
appearing for the respondents, after taking
instructions from the concerned respondents, at
the outset submitted that if the direction issued
by the Tribunal granting 50% backwages in favour
of the respondents is set aside, the respondents
have no objection and to that extent, the award
passed by the Tribunal be modified and
accordingly, the order passed by the learned
Single Judge may also be modified.
9. Learned advocate would further submit that from
the deposition given by the witnesses and from the
documentary evidence produced before the Tribunal,
it would emerge that the respondents were not
engaged for the scarcity relief work as contended
by learned advocate for the appellant -
petitioner. It is submitted that though the
Reference was pending before the Tribunal for
regularization and though written assurance was
given by the appellant - petitioner before the
Tribunal in the application filed under Section
10(4) of the ID Act that the services of the
respondents will not be terminated without
following due process of law, the appellant -
petitioner terminated the services of the
respondents on 15.07.2002 without following due
process of law and without taking approval as per
the provision of the ID Act. It is submitted that
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
specific finding has been recorded by the Tribunal
that without taking approval of the Tribunal, the
services of the respondents were terminated. It is
also submitted that the Industrial Tribunal has
also recorded the finding that the petitioner had
given assurance during the hearing of an
application filed under Section 10(4) of the ID
Act that the services of the respondents will not
be terminated without following due process of
law, inspite of that, the services of the
respondents came to be terminated in July, 2002.
Thus, the Industrial Tribunal has rightly directed
the appellant - petitioner to reinstate the
respondents and, therefore, learned Single Judge
has rightly dismissed the petition filed by the
appellant - petitioner while placing reliance upon
the decision rendered by the Hon'ble Supreme Court
in case of Jaipur Zila Sahkari Bhoomi Vikas Bank
Ltd. (supra). Learned advocate, therefore, urged
that both these appeals be dismissed.
10. We have considered the submissions canvassed by
learned advocates for the parties. We have also
perused the material placed on record. It is not
in dispute that the respondents were offered work
by the appellant - petitioner in the year 1999 and
in the year 2001, the respondents filed Reference
(IT) No.80/2001 before the Industrial Tribunal for
regularization of their services. During the
pendency of the said reference, an application
under Section 10(4) of the ID Act was also filed
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
by the respondents, wherein interim relief was
prayed that the appellant - petitioner be
restrained from terminating the services of the
respondents. It is pertinent to note that in the
said application, the appellant - petitioner had
given an undertaking before the Tribunal that the
services of the respondents will not be terminated
without following due process of law. Though such
type of undertaking was given by the appellant -
petitioner, on 15.07.2002, the services of the
respondents were brought to an end and, therefore,
an application was filed by the respondents under
Section 33 of the ID Act before the Industrial
Tribunal, which was registered as Reference (IT)
No.29/2012 (Old No.42/2002). Section 33 of the ID
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 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 proceeding; or
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
(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 authority before
which the proceeding is pending for approval
of the action taken by the employer.
(3) Notwithstanding anything contained in sub-
section (2), no employer shall, during the
pendency of any such proceeding in respect of
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
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.
Explanation: For the purposes of this sub-section,
a "protected workman", in relation to an
establishment, means a workman who, being [a
member of the executive or other office-
bearer] of a registered trade union connected
with the establishment, is recognised as such
in accordance with rules made in this behalf.
(4) In every establishment, the number of workmen
to be recognised as protected workmen for the
purposes of sub-section (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
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
establishment and the manner in which the
workmen may be chosen and recognised 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:]
[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 sub-
section had expired without such proceedings
being completed.]"
11. Thus as per the aforesaid provision, protection
was given to the workman, where the Reference is
pending before the concerned Court/Tribunal. The
appellant - petitioner has failed to point out
before the Tribunal that prior to terminating the
services of the respondents in the year 2002, any
approval has been sought from the Tribunal or
Labour Court, where Reference was pending.
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
12. In case of Jaipur Zila Sahkari Bhoomi Vikas Bank
Ltd. (supra), the Hon'ble Supreme Court has
observed in Paragraph No.12 as under,
"12. The proviso to Section 33(2)(b), as can be
seen from its very unambiguous and clear
language, is mandatory. This apart, from the
object of Section 33 and in the context of
the proviso to Section 33(2)
(b), it is obvious that the conditions
contained in the said proviso are
to be essentially complied with. Further any
employer who contravenes the provisions of
Section 33 invites a punishment under S.31(1)
with imprisonment for a term which may extend
to six months or with fine which may extend
to Rs.1000/- or with both. This penal
provision is again a pointer of the mandatory
nature of the proviso to comply with the
conditions stated therein. To put it in other
way, the said conditions being mandatory, are
to be satisfied if an order of discharge or
dismissal passed under Section 33(2)(b) is to
be operative. If an employer desires to take
benefit of the said provision for passing an
order of discharge or dismissal of an
employee, he has also to take the burden of
discharging the statutory obligation placed
on him in the said proviso. Taking a contrary
view that an order of discharge or dismissal
passed by an employer in contravention of the
mandatory conditions contained in the proviso
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
does not render such an order inoperative or
void, defeats the very purpose of the proviso
and it becomes meaningless. It is well-
settled rule of interpretation that no part
of statute shall be construed as unnecessary
or superfluous. The proviso cannot be diluted
or disobeyed by an employer. He cannot
disobey the mandatory provision and then say
that the order of discharge or dismissal made
in contravention of Section 33(2)(b) is not
void or inoperative. He cannot be permitted
to take advantage of his own wrong. The
interpretation of statute must be such that
it should advance the legislative intent and
serve the purpose for which it is made rather
than to frustrate it. The proviso to Section
33(2) b) affords protection to a workman to
safeguard his interest and it is a shield
against victimization and unfair labour
practice by the employer during the pendency
of industrial dispute when the relationship
between them are already strained. An
employer cannot be permitted to use the
provision of Section 33(2)(b) to ease out a
workman without complying with the conditions
contained in the said proviso for any alleged
misconduct said to be unconnected with the
already pending industrial dispute. The
protection afforded to a workman under the
said provision cannot be taken away. If it is
to be held that an order of discharge or
dismissal passed by the employer without
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
complying with the requirements of the said
proviso is not void or inoperative, the
employer may with impunity discharge or
dismiss a workman."
13. Keeping in view the aforesaid decision rendered by
the Hon'ble Supreme Court, if the facts of the
present case, as discussed hereinabove, are
examined, we are of the view that when the
appellant - petitioner had not taken prior
approval of the concerned Tribunal before
terminating the services of the respondents, the
said order of termination was rightly quashed and
set aside by the Tribunal and while quashing of
the said order of termination, the Tribunal has
given direction to reinstate the respondents on
their respective original post. Therefore we are
of the view that by giving such direction, the
Tribunal has not committed any error and,
therefore, the learned Single Judge has rightly
not interfered with such direction issued by the
Tribunal.
14. So far as the direction given by the Tribunal with
regard to grant of 50% backwages is concerned, it
is pertinent to note that learned advocate, Mr.
Mishra has submitted before this Court after
taking instructions from the respondents that if
the said direction is set aside, the respondents
have no objection. Thus, the direction issued by
the Tribunal while passing award dated 10.03.2017
with regard to 50% backwages is concerned, same
deserves to be set aside. It is also required to
C/LPA/95/2023 JUDGMENT DATED: 19/04/2023
be observed at this stage that while giving such
direction, the Tribunal has not recorded any
finding that as to why such type of direction is
issued for the payment of 50% backwages, therefore
also, such direction deserves to be set aside.
15. In view of the aforesaid observations, both these
appeals partly allowed. The impugned order dated
10.03.2017 passed by the Industrial Tribunal,
Jamnagar in Reference (IT) No.29/2012 (Old
No.42/2002) and the impugned order dated
10.03.2017 passed by the Industrial Tribunal,
Jamnagar in Complaint (IT) No.30/2012 (Old
No.44/2002) are hereby modified to the extent that
direction with regard to reinstatement with
continuity of service stands confirmed, whereas
direction with regard to 50% backwages stands
quashed and set aside.
16. Connected civil applications do not survive and
stand disposed of accordingly.
Sd/-
(VIPUL M. PANCHOLI, J.)
Sd/-
(HASMUKH D. SUTHAR, J.)
Gautam
