Gujarat High Court

The President, Gidc Employees ... vs The Medical Superintendent on 15 March, 2023

Bench: Sandeep N. Bhatt

      C/SCA/3707/2023                                              ORDER DATED: 15/03/2023




            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

              R/SPECIAL CIVIL APPLICATION NO. 3707 of 2023

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        THE PRESIDENT, GIDC EMPLOYEES UNION NAIM SHEIKH
                             Versus
                  THE MEDICAL SUPERINTENDENT
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Appearance:
MR A A ZABUAWALA(6823) for the Petitioner(s) No. 1
for the Respondent(s) No. 1,2,3
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 CORAM:HONOURABLE MR. JUSTICE SANDEEP N. BHATT

                                   Date : 15/03/2023
                                    ORAL ORDER

1. The present petition is filed by the petitioner by

challenging the impugned judgment and order passed by

learned Presiding Officer, Industrial Tribunal No.2,

Vadodara in Reference (IT) Case No.241 of 2014 dated

25.11.2021, by which the learned Tribunal has rejected

the Reference of the present petitioner.

2.1 Brief facts of the case are as such that the

petitioner is union firm and workers under the union are

the members of this union. It is the case of the

petitioner that workers of the union are working with

the respondent No.2 under contract basis since long time

and also working with the respondent No.1 herein and

C/SCA/3707/2023 ORDER DATED: 15/03/2023

therefore, the case of the petitioner is that the petitioner

is working with the respondent No.1 and there are many

persons from the union, who are working as workers on

different posts such as ward boy, male sweeper, fee

sweeper, etc. since long time. Since they are working

with the respondent No.1, the workers of the union had

raised the demand for regularization of their services and

to consider the workers as workers of the respondent

No.1 as being permanent employees. Such demand of the

workers was not considered, and therefore, a Reference

(IT) Case No.241 of 2014 came to be filed before the

authority.

2.2 After filing of statement of demand at Exh.9, respondent No.2 has filed written statement at Exh.15 by

submitting that there is no question to entertain such

Reference and the Reference is not entertainable in view

of Section 2K of the Industrial Disputes Act, 1947. It is

also admitted in the said written statement that such

workers are the employees of the respondent No.2 and

they are working on contract and they have been given

the necessary benefits viz., ESI facility, provident fund

facility and identity card, etc. It is also averred in the

C/SCA/3707/2023 ORDER DATED: 15/03/2023

written statement that respondent No.1 - the Medical

Superintendent, Sterling Hospital has no relation about

the services of workers of respondent No.2 and they are

not the permanent employees of respondent No.1 -

hospital.

2.3 Thereafter, the respondent No.1 has filed written

statements by contending various points in defence and

has prayed that there is no relation between the present

petitioner and respondent No.1, and therefore, the

Reference is required to be rejected in addition to other

grounds raised in the written statement, the Reference is

required to be dismissed.

2.4 Thereafter, the respective parties have examined

their witnesses. One Harijan Ashok Parasottambhai is

examined at Exh.40 and Bariya Gopal Gambhirbhai is

examined at Exh.41.

2.5 The documentary evidences have also been produced

at Exh.22/1, 23/1, 24/1, etc. till 36/35. The respondent

No.1 has produced the deposition one Sthitipragnya

Kantilal Shah at Exh.71. He has also produced

C/SCA/3707/2023 ORDER DATED: 15/03/2023

documentary evidences at Exh.19/1 to 19/3, 53/1 to 53/6,

65/1 to 65/2, 86/1 to 86/6. The respondent No.2 has also

produced the document evidences at Exh.62/01 to 62/15,

68/1 to 68/10, 74/1 to 74/14, 89/1 to 89/4. Thereafter, the

closing pursis are given by respective parties and the

learned Industrial Tribunal has framed the issues for its

determination. After considering the materials available

on the record, the Reference is dismissed by order dated

25.11.2021.

3. Learned advocate for the petitioner has submitted

that the impugned judgment and order passed by the

Reference Court is not in accordance with law. He has

further submitted that the learned Labour Court has erred in not considering that the workers of the

petitioner No.1 are working with the respondent No.1

since long time on different posts. He has further

submitted that there is no single document on record to

suggest that the respondent No.1 herein has declared

about actual status of the petitioner, and therefore,

impugned judgment and order passed by learned

Reference Court is apparently improper and illegal and is

required to be interfered with by this Court by

C/SCA/3707/2023 ORDER DATED: 15/03/2023

exercising powers under Article 227 of the Constitution

of India.

4.1 I have heard learned advocate for the petitioner at

length for admission of the petition. I have perused the

order passed by the learned Industrial Tribunal. I have

also gone through the other Annexures annexed with the

present petition such as; statement of claim and written

statements filed by the respective respondents.

4.2 It clearly transpires that respondent No.2 has

categorically stated in its written statement that the

respondent No.1 - Medical Superintendent, Sterling

Hospital has no connection whatsoever with the workers of the respondent No.2 as respondent No.2 is supplying

the employees to respondent No.1 on contract basis and

respondent No.2 is providing the necessary benefits viz.,

identity card, attendance card, ESI facilities and

Provident Fund to the workers concerned. This fact is

rightly considered by the Tribunal as this is categorical

averment, which is available on the record.

4.3 It is also found from the record that the placement

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of contract was for the period from 2008 to 2018 and

the documentary evidence, which is produced on the

record i.e. pay slip, etc., are also issued by the

respondent No.2 - contractor, and therefore, the Tribunal

has rightly considered the various judgments reported in

(i) 1978 (0) A.I.J.E.L. Supreme Court 11397 in the case

of Hussainbhai Calicutt Versus Alath Factory, (ii) 1992

(2) LLJ 782 in the case of K.K. Thilakan And Others Versus Fact Limited, (iii) 2002 (4) LLN 985 Supreme Court in the case of Gujarat Kamdar Panchayat Versus

Maize Producers, (iv) 2016 (4) LLN 453 in the case of M.P. High Court Birla Corporation Versus Deputy Labour Commissioner, (v) 2016 (4) LLN 592 in the case of Allahabad High Court, Branch Manager Prathan Bank Versus State of U.P. And Others , whereby the Hon'ble Courts have found that when the employee is working as

worker of the contractor, then the Reference could be

considered against the original employer and not against

the other person.

4.4 Learned Labour Court has relied upon the judgment

of this Court in the case of Gujarat High Court Versus

N.D.D.B. Employees Union reported in 2011 (3) GLR

C/SCA/3707/2023 ORDER DATED: 15/03/2023

2360, where the Court has found that if the Reference is made about the genuineness of contract labour system

and the Reference is made for the specific purpose then

only the learned Labour Court can consider such

Reference and the learned Labour Court cannot consider

any matter beyond the terms of Reference and neither

the learned Labour Court can enlarge the scope of

Reference.

4.5 In the judgment of the Hon'ble Apex Court in the

case of Steel Authority of India reported in 2006 (4)

LLN 651, Hon'ble Supreme Court has categorically held that when the contractor is admitting that the workers

are working as contractor's labourer/worker then the Reference cannot be proceeded against the main owner of

the place where the workers are working and the Court

has also considered various judgments of the Hon'ble

Apex Court reported in (i) 1992 (1) LLJ 475 (ii) 2011

(1) LLN 368 (iii) 2014 (2) SCC 368 (v) 2014 (2) SCC 353 and other judgments, which are referred in the impugned judgment and had come to the conclusion that

the Reference, made by the authority pursuant to the

grievance made by the present petitioner is not

C/SCA/3707/2023 ORDER DATED: 15/03/2023

entertained and has rightly rejected the same by

considering the fact that the respondent No.2 has

categorically accepted that the petitioner - workers are

working with the respondent No.2 and respondent No.2

is having contract with respondent No.1 during the

period from 2008 to 2018, and therefore, no relief prayed

in terms of Reference or no case of the petitioner can be

considered as stated in the statement made by the

learned Labour Court. Such findings are in accordance