Gujarat High Court
Kamdar Hit Rakshak Union Through ... vs Deputy Director Of Traffic Manager on 2 August, 2024
NEUTRAL CITATION
C/SCA/11429/2022 ORDER DATED: 02/08/2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 11429 of 2022
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KAMDAR HIT RAKSHAK UNION THROUGH PRESIDENT
Versus
DEPUTY DIRECTOR OF TRAFFIC MANAGER
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Appearance:
MR UT MISHRA(3605) for the Petitioner(s) No. 1
MR HS MUNSHAW(495) for the Respondent(s) No. 1
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CORAM:HONOURABLE MR. JUSTICE HEMANT M.
PRACHCHHAK
Date : 02/08/2024
ORAL ORDER
1. The present petition is filed through its President Kamdar
Hit Rakshak Union under Article 226 & 227 of the Constitution of
India read with Section 10(1)(c) of the Industrial Disputes Act,
challenging the impugned award dated 29.01.2022 passed the
Industrial Tribunal, Ahmedabad in Reference (IT) No. 07 of 2021,
whereby the reference of the present petitioner came to be
dismissed.
2. The brief facts of the present case are as under :-
2.1 The petitioner is a trade union registered under the
provisions of Trade Unions Act, 1926. The petitioner union raised
a Charter of Demand on behalf of its member namely- Ishwarbhai
Lilabhai Desai, challenging 3 different punishment orders passed
by the respondent. The petitioner- Union has raised Charter of
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Demand on 01.02.2020.
2.2 Pursuant to the Charter of demand raised by the petitioner
- union, the conciliation proceedings were initiated and
ultimately the dispute was referred by the appropriate
government to the Industrial Tribunal, Ahmedabad for
adjudication on 18.01.2021. The dispute was registered as
Reference (IT) No.7/2021. The petitioner has filed Statement of
Claim before the Industrial Tribunal.
2.3 Pursuant to to the notice issued by the Industrial Tribunal,
the respondent management appeared and filed their Written
Statement. Thereafter, the respondent management has
produced several documentary evidence. Thereafter the
petitioner filed affidavit in support of his oral evidence, the
advocate appearing on behalf of respondent Corporation, cross-
examined the petitioner. Thereafter, the learned Member of the
Industrial Tribunal adjudicated upon the said reference and
passed an award dated 29-1-2022 by which the reference came to
be rejected.
3. Learned advocate Mr. U.T. Mishra appearing on behalf of
the petitioner submits that the respondent has imposed
different punishment by orders dated 21.01.2014, 02.02.2015
and 13.04.2016. All these 3 punishment orders were challenged
by raising industrial dispute u/s.10 and the said demand was
referred to the Industrial Tribunal for adjudication. Therefore,
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learned Member of the Industrial Tribunal ought to have
considered all these aspects and decided the dispute which has
been referred for adjudication. It is also submitted that the
Tribunal has failed to appreciate all these aspects and the
reference is rejected solely on the hyper technical ground of
delay. Therefore, the impugned award dated 29.01.2022 is ex
facie erroneous and result of non-application of mind and
therefore, same is required to be quashed and set aside;
3.2 It is submitted that there is no delay in raising industrial
dispute since the petitioner was persistently making
representation and the respondent management to review the
punishment orders which are passed without considering the
factual aspects. The petitioner respectfully submits that in
Review Application filed by the petitioner, the petitioner has
pointed out that the respondent has imposed the punishment
without considering the factual aspects. Therefore, learned
member Industrial Tribunal ought to have examined these factual
aspects and ought to have decided the reference on merit
instead of rejecting the reference on the ground of delay.
3.3 It is further submitted that the respondent has imposed
first punishment dated 21.04.2014, by which the respondent
imposed punishment of putting the workman on minimum of the
pay-scale. It is further submitted that thereafter the respondent
imposed another punishment by order dated 02.02.2015 by
which the respondent imposed punishment of stoppage of six
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increments. Thereafter, the respondent has imposed third
punishment vide order dated 13.04.2016, by which a fine of Rs.
40,000/- was imposed on the workman.
3.4 It is respectfully submitted that there is no delay and
therefore, impugned award dated 29-1-2022 passed by the
learned Industrial Tribunal is ex facie , erroneous and illegal and
requires to be quashed and set aside.
4. Learned advocate Mr. H.S. Munshaw, appearing on behalf
of respondent -Corporation submits that the present petition is
not maintainable. It is submitted that the learned Industrial
Tribunal while exercising its jurisdiction under Section 11(a) of
the Industrial Disputes Act has rightly passed the impugned
order and the same is discussed by the Industrial Tribunal while
coming into conclusion in Para-13 onwards, more particularly, the
provisions of Section 11(a) of the I.D. Act, the Industrial Tribunal
has rightly dealt with the order of punishment under the said
provision, while discussing the scope and ambit of Section 11(a)
in Para-25. It is also submitted that the petitioner is habitual
absentee as from 2009 he has remained absent for almost five
years on different occasions. It is also submitted that total period
of his absentism is more than 4 years, 200 days. It is submitted
that considering the conduct of the present petitioner, he is not
entitled to get any relief. It is also submitted that the Industrial
Tribunal has rightly considered the fact and has rejected the
reference of the present petitioner, which is in-consonance with
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the settled principle of law. It is also submitted that the present
petition is filed almost after 11 years, 8 months and 9 days, there
is gross delay in preferring the present petition. It is further
submitted that on sole ground, the present petition may be
dismissed.
5. Heard learned advocates for the respective parties and
having considered the fact that the Industrial Tribunal has
considered the earlier order of punishment and subsequent
order of punishment and charge sheet which is filed against the
present petitioner. It is also finds that the Industrial Tribunal has
not committed any error in passing the order on the ground of
powers and scope of the Industrial Tribunal while exercising the
provisions of Section 11(a) of the Industrial Disputes Act and also
on the ground of gross delay in preferring petition.
6. After considering the submissions advanced by the learned
advocate for the parties, after perusal of the order passed by the
Industrial Tribunal and the findings recorded in the order from
Para-13 onwards, the observation made by the Industrial
Tribunal, I am of the opinion that no illegality is committed by the
Industrial Tribunal while deciding the reference filed by the
present petitioner. This Court also finds that the Industrial
Tribunal has also considered the aspect of delay on the judgment
of Hon'ble Apex Court in the case of "Prabahakaer Vs. Joint
Director, Sericulture Department and another" reported in 2015
(15) SCC 1 in paragraph-18. It is also considered by the Industrial
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Tribunal with regard to the power and scope of the Industrial
Tribunal under Section 11(a) of the I.D. Act, while discussing the
question of punishment imposed by the authority and the
interference in the reference while referred the judgment of
Hon'ble Apex Court in the case of "Indian Iron and Steel Co. Ltd.
Vs. Their Workman reported in 1958 SC 667" as well as in the case
of "Workmen in Firestone Tyre and Rubber Co. India (Pvt) Ltd. Vs.
The Management" reported in 1973 (1) SCC 813" and considering
the fact that from almost 2009 onwards the petitioner has
remained absent on almost every year or almost period of 10 to
11 months in a year. It is also finds that the petitioner was
habitual absentee and considering his past history, the Industrial
Tribunal has rightly rejected the reference of the present
petitioner. This Court has also considered the case of gross
absentism in the case of "M.B. Raut (Mahendrakumar
Bhagwandas Raut) Vs. District Development Officer and others
recorded in Special Civil Application No. 3852 of 2016" dated
25.01.2024. The present petition devoid of merits and deserves
to be dismissed. The present petition is dismissed. Notice is
discharged.
(HEMANT M. PRACHCHHAK,J)
SALIM/
