Gd Lab Solution Private Ltd. ... vs Vipulbhai Dineshbhai Patel
2023 Latest Caselaw 2227 Guj

     C/SCA/15330/2022                                    JUDGMENT DATED: 14/03/2023




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 15330 of 2022


FOR APPROVAL AND SIGNATURE:


HONOURABLE MR. JUSTICE SANDEEP N. BHATT

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1     Whether Reporters of Local Papers may be allowed                       YES
      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 ?

==========================================================
          GD LAB SOLUTION PRIVATE LTD. FORMERLY KNOWN AS
                    GORDHANDAS DESAI PVT. LTD.
                               Versus
                    VIPULBHAI DINESHBHAI PATEL
==========================================================
Appearance:
MR HRIDAY BUCH(2372) for the Petitioner(s) No. 1
MR BHAVESH D HAJARE(5515) for the Respondent(s) No. 1
NOTICE SERVED BY DS for the Respondent(s) No. 2
==========================================================

    CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                 Date : 14/03/2023
                                 ORAL JUDGMENT

1. The present petition under Article 226/227 of the

Constitution of India is filed by the petitioner by

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

challenging the illegality, validity and propriety of the

order dated 30.03.2022 passed by the learned Labour

Court No.2, Vadodara in Approval Application No.5 of

2012 which is preferred by the present petitioner under

Section 33(2) of the Industrial Disputes Act, 1947,

seeking approval of dismissal of respondent workman

after holding detailed departmental enquiry against him.

2.1 Brief facts of the case are as such that the

petitioner is a company registered under the Companies

Act, 1956 originally established as Gordhandas Desai

Private Limited and subsequently changed name to G. D.

Lab Solutions Private Limited, and now it is known as

G.D. Waldner India Pvt. Ltd effective from 16th July 2021, upon received approval from the concerned

authorities.

2.2 It is the case of the petitioner that the company is

engaged in the work of Manufacturing of Laboratory

Scientific Equipment, Laboratory Furniture and Turnkey

Projects for the same. The respondent workman along

with other workmen of the Company placed a charter of

demand through their Trade Union for enhancement of

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

Dearness Allowance and other allowances for the period

between 2011-2014 in view of the period of earlier

settlement under Section 18(1) and Section 2(P) got over

on 31.03.2011. Upon failure of conciliation proceedings on

demand matter, the charter of demand placed by the

workmen of the Company was referred to the learned

Labour Court, Vadodara for adjudication of dispute,

which was numbered as Demand Reference No.31 of

2012. Pending the above reference case, having found the

respondent workman indulged into gross irregularities

and misconduct including illegal strike, was placed under

suspension on 21.03.2012 which was followed by issuance

of charge sheet on 26.03.2012. The inquiry proceedings is

commenced and the workman was allowed to represent his case through his lawyer. After enquiry proceedings,

the workman was found guilty of the charges levelled

against him by the Inquiry Officer as reported dated

06.08.2012, hence, prior to imposition of punishment,

show cause notice was issued on 09.08.2012, which was

replied by the workman on 17.08.2012.

2.3 The company has considered the seriousness of the

charges of the respondent workman decided to terminate

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

the workman from service from 26.03.2012 w.e.f. the date

of suspension vide letter dated 07.09.2012. While

terminating respondent workman from the service, he

was given the one month's notice pay and other terminal

dues towards final settlement by the petitioner.

2.4 Thereafter, the company has preferred an Approval

Application under Section 33(2) of the Industrial Dispute

Act and Rule 63(2) of the Industrial Disputes (Gujarat)

Rules, 1966 seeking approval of the Ld. Labour Court,

Vadodara, as main Demand Reference No.31 of 2012 is

pending. The said application is opposed by respondent

submitting his reply dated 15.10.2013. On 15.04.2014, the

respondent workman has filed an application praying for

rejection of Company's Approval Application at preliminary stage. That application of workman was

responded by the petitioner Company on 24.06.2014. The

said application came to be disposed of on 17.07.2017 as

same was not pressed by the workman. The learned

Labour Court recorded examination-in-chief of Officer of

Company on 26.03.2018 and cross examination was done

on 27.08.2018 and thereafter, both the parties have

submitted their written submissions in support of their

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

cases. The learned Labour Court No.2, Vadodara has

passed order on 30.03.2022 rejecting the Approval

Application No.5 of 2012 of petitioner Company.

2.5 Thereafter, the petitioner has preferred the present

petition challenging the order passed by the learned

Labour Court.

3. At the consent of learned advocates for the

respective parties, today, the matter is heard for final

disposal.

4.1 Learned advocate Mr. Hriday Buch for the

petitioner - Company has submitted that the impugned

order passed by the learned Labour Court is totally erroneous, improper and against the settled position of

law.

4.2 He has further submitted that the learned Labour

Court has committed gross error in not considering the

fact that the issue involved in the main Reference i.e.

Demand Reference No.31 of 2012 was totally different

than the issue in the Approval Application. The issue in

main Reference was related to enhancement of DA and

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

other dues, whereas, approval application was filed

seeking approval of dismissal of respondent - workman

as a part of disciplinary action after holding

departmental proceedings, hence, dismissal, being an

independent and different issue, can never be termed as

'related issue' to the dispute pending for adjudication in

main proceeding, and therefore, the learned Labour Court

has arrived at a wrong conclusion, which is contrary

to the provision made in the Industrial Disputes Act.

4.3 He has further submitted that the learned Labour

Court has failed to appreciate the fact that while

dismissing the respondent workman from service, all his

legal dues were paid to him on the very same day, and therefore, mere filing of an application for seeking

approval after delay of one month and two days would

not jeopardize the right of an employer to dismiss an

employee on his guilty.

4.4 He has further submitted that the learned Labour

Court has rightly observed in the impugned order that

the three acts - dismissal, payment of full and final

settlement amount and filing of approval application are

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

to be done simultaneously on the same day. He has

submitted that in fact, the Hon'ble Apex Court has

categorically held that employer must take action

simultaneously or immediately, however, it does not

liberally mean to be done simultaneously but can only be

done one after the other and if those are parts of the

same transaction then the application for approval filed

under Section 33(2)(b) can be said to be validly

commenced. This case law though relied upon and

referred by the petitioner but it was not even mentioned

by the learned Labour Court in the impugned judgment.

4.5 He has further drawn the attention of this Court

towards judgment of Hon'ble Apex Court in the case of Straw Board Manufacturing Co., Ltd., Saharanpur Versus Govind reported in AIR 1962 SC 1500 and has has relied upon the paragraph 5 of that judgment, which

reads as under:-

"5. The next question is as to when should an

application be made. In this connection our attention

was drawn to s. 33-A of the Act which gives a right to

the employer to apply for redress in case an employer

contravenes the provision of s. 33 and there is no doubt

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

that the proviso to s. 33 (2), (b) should be so

interpreted as not to whittle down the protection

provided by s. 33-A. As we read the proviso, we are of

opinion that it contemplates the three things mentioned

therein, namely, (i) dismissal or discharge, (ii) payments

of wages and (iii) making of ,in application for approval,

to be simultaneous and to be part of the same

transaction, so that the employer when he takes action

under s. 33 (2) by dismissing or discharging an

employee, should immediately pay him or offer to pay

him wages for one month and also make an application

to the tribunal for approval at the same time. When

however we say that the employer must take action

simultaneously or immediately we do not mean that

literally, for when three things are to be done they

cannot be done, simultaneously but can only be done

one after the other. What we mean is that the

employer's conduct should show that the three things

contemplated under the proviso, namely, (i) dismissal or

discharge, (ii) payment of the wages, and (iii) making of

the application, are parts of the same transaction. If

that is done, there will be no occasion to fear that the

employee's right under s. 33-A would be affected. The

ques- tion whether the application was made as part of

the same transaction or at the same time when the

action was taken would be a question of fact and ,Will

depend upon the circumstances of each case."

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

4.6 He has further submitted that the same view is

reiterated by the Hon'ble Apex Court in the case of

Calcutta State Transport Corporation Versus Md. Noor Alam reported in (1974) 3 SCC 70, he has relied upon para 4 of that judgment and has submitted that each

case must be decided on its own facts, and therefore, he

has submitted that there cannot be any hard and fast

rule that all the three things should be done

simultaneously on the same date but in the present case,

when the approval application is filed, the other two acts

are done on the same day and only the approval

application is filed after one month and two days after

termination and it cannot be said that there is gross delay or unreasonable delay and considering the totality

of the circumstances and considering the provisions of

Section 33(2) of the Industrial Disputes Act, the present

petition deserves to be allowed.

5.1 Per contra, learned advocate Mr. Krishnan M.

Ghavariya appearing for learned advocate Mr. Bhavesh

D. Hajare for the respondent has opposed the contentions

raised by learned advocate for the petitioner and has

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

referred his affidavit-in-reply, wherein he has stated that

though the two out of three acts done on the same day

and application for seeking approval is filed after much

delay of one month and two days, which cannot be

considered as the act is done simultaneously, and

therefore, in view of the judgment of the Hon'ble Apex

Court and even the application for approval cannot be

considered to be filed immediately after dismissal, and

therefore, the three conditions are not properly satisfied

in the facts of the present case.

5.2 He has relied upon the decision of this Court in

the case of Manavadar Nagarpalika Through Chief Officer Versus Vijay Vinubhai Rathod rendered in Special Civil Application No.15113 of 2019 and allied matter dated 06.09.2019, and has submitted that when the

Reference is pending, the workman can invoke the

provisions of Section 33(a) of the I.D. Act, which he has

already invoked but the learned Labour Court has

rejected the same. He has filed separate petition but

considering the very fact that the Reference, which was

substantially raised by the workman, is pending, such

termination cannot be considered as legal and valid, and

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

therefore, he has prayed to dismiss the present petition.

6.1 I have heard the learned advocates appearing for

the respective parties. I have perused the record and

proceedings. I have also perused the affidavit-in-reply

filed by the respective respondents.

6.2 The main controversy reveals around the three acts

on the same day, which are required to be done at the

time of filing of approval application as per Section 33(2)

(b) of the Industrial Disputes Act and the three acts i.e.

(i) dismissal/discharge, (ii) payment of full and final

settlement amount and (iii) filing of approval application,

to be part of same transaction.

6.3 The learned Labour Court has rejected the

application filed by the present petitioner for approval

mainly on the ground that such application is not filed

simultaneously on the same day but it is filed after the

delay of one month and 2 days after dismissal of the

respondent as well as payment of full and final

settlement "payment of wages". The first two acts are

happened on 07.09.2012 and approval application is filed

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

on 09.10.2012 and this aspect is considered by the

learned Labour Court by relying on Section 101 of the

Indian Evidence Act, 1872 by saying that such three

aspects are not fully satisfied by the present petitioner,

and therefore, the approval application is dismissed.

6.4 In my view, this breach of learned Labour Court is

very hyper technical and there no dispute about the fact

that there is delay of one month and two days after the

filing of approval application after after dismissal of

workman, however, two acts were satisfied on the very

day and the third act, which is approval application, is

satisfied with later but not to be considered that it is

filed after much period of delay in the facts and circumstances of the present case. Delay of one month

and two days in filing of approval application is certainly

not causing any prejudice to the right of any party. The

petitioner may not get any benefit for causing such delay

and moreover, in view of the judgments in the cases of

(i) Straw Board Manufacturing Co., Ltd., Saharanpur

(supra), (ii) Calcutta State Transport Corporation (supra) and para 4 is relevant, which reads as under:-

"4. It has been argued before us and rightly

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

that the Labour Court wholly misunderstood the true

position both on facts and in law. Firstly the order of

removal was merely recorded on the official file on May

18,1967 and it was to be effective only from July 1,

1967. Before that period it was open to the competent

authority to withdraw the order. Therefore the (late of

dismissal of the workman could only be July 1, 1967

and not any prior date on which the order was

recorded on the file. The wages were also received by

the workman i.e. the respondent on the same date

which was a Saturday. It was wholly immaterial when

the Money Order was sent. The application was filed

for approval on July 3, 1967 which was a Monday. It

is obvious that no application could have been filed on

a Sunday which was a holiday. The proviso to s. 33(2)

(b) contemplates three things; (i) dismissal or discharge;

(ii) payment of wages and (iii) making of an application

for approval to be simultaneous and to be part of the

same transaction. The object is that when the employer

takes action under s. 33(2)(b) by dismissing or

discharging an employee he should immediately make

payment to him or offer payment of wages for one

month and also make an application to the Tribunal or

the Labour Court, as the case may be, for approval.

The employer's conduct should show that the three

things contemplated under the proviso are parts of the

same transaction. [See Strawboard Manufacturing Co. v.

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

Govind(1)]. In P. H. Kalyani v. M/s. Air France,

Calcutta (2) the order of dismissal was passed on May

28, 1960 and was communicated to the employee on

May 30, 1960. The wages were offered to him at the

same time when the order was communicated. An

application was made under s. 3 3 (2) (b) on the same

day. It was held that the application was in accordance

with the proviso to s. 3 3 (2)

(b) This decision shows that similar action has to be

taken in these matters but that does not mean that all

the three things mentioned before should be done on

the same day. It is the conduct of the employer that

has to be considered from the point of view of finding

out whether the dismissal or discharge, payment of

wages and making of the application for approval form

a part of the same transaction. A difference of a day

in doing one thing or the other may not be of material

consequence so long as it is clear that the employer

meant to do all the three things as part of one and

the same transaction. No hard and fast rule can be

laid down in these matters. Each case must be decided

on its own facts."

And also the judgment of this Court cited by the

respondent in the case of Manavadar Nagarpalika Through Chief Officer (supra), the fact remains that even

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

Hon'ble Apex Court has also considered this aspect by

observing that "a difference of a day in doing one thing

or other thing may not be of material consequence so

long as it is clear that the employer meant to do all the

three things as a part of one and same transaction. No

hard and fast rule can be laid down in these matters.

Each case must be decided on its own facts." Therefore,

in my opinion, in view of the above settled position of

law and in the facts of the present case, when the

employer has acted in pursuant to the same transaction,

the delay of one month and two days in filing the

approval application should not be considered as fatal

but it should be considered in compliance of Section

33(2)(b) of the Industrial Disputes Act, which reads as under:-

Section 33(2)(b) in The Industrial Disputes

Act, 1947:-

"(b) for any misconduct not connected with the

dispute, or 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

C/SCA/15330/2022 JUDGMENT DATED: 14/03/2023

which the proceeding is pending for approval of the

action taken by the employer."

6.5 In view of above discussion, I am of the considered

opinion that the present petition deserves to be allowed.

The impugned order dated 30.03.2022 passed by the

learned Labour Court No.2, Vadodara in Approval

Application No.5 of 2012 is hereby quashed and set aside

with a further direction to allow the approval application,

as prayed for.

7. With the above observation, the present petition is

allowed.

(SANDEEP N. BHATT,J) DIWAKAR SHUKLA