Gujarat High Court
President/ Chief Officer, Jamjodjhpur ... vs Jamnagar Jilla Mazdoor Sangh on 17 September, 2024
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IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SPECIAL CIVIL APPLICATION NO. 20031 of 2023
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK Sd/-
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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 ?
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PRESIDENT/ CHIEF OFFICER, JAMJODJHPUR NAGARPALIKA
Versus
JAMNAGAR JILLA MAZDOOR SANGH & ANR.
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Appearance:
MR PRATEEK KHUBCHANDANI FOR M/S.VYAS ASSOCIATES(1559) for
the Petitioner(s) No. 1
MR UT MISHRA(3605) for the Respondent(s) No. 1
NOTICE SERVED for the Respondent(s) No. 2
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CORAM:HONOURABLE MR. JUSTICE HEMANT M. PRACHCHHAK
Date : 17/09/2024
ORAL JUDGMENT
1. RULE. Mr. U.T. Mishra, learned Counsel waives
service of notice of rule on behalf of the respondent No.1.
With consent of the parties, the matter is taken up for
final disposal today.
2. The petitioner has preferred present petition under
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Articles 14, 21, 226 and 227 of the Constitution of India
read with the provision of Industrial Disputes Act, 1947
(hereinafter referred to as the "I.D. Act") challenging the
impugned award dated 21.9.2023 passed by the
Industrial Tribunal, Jamnagar in Reference (I.T.) Case No.
1 of 2022 with below mentioned relief/s:-
"(a) Your Lordships may be pleased to issue an
appropriate writ in the nature of certiorari and / or
mandamus, direction and / or order and any other
appropriate writ, order or direction to quash and set
aside the award dated 21.9.2023 Annex-A passed by the
Presiding Officer, Industrial Tribunal, Jamnagar in
Reference (I.T.) Case No. 1 of 2022.
(b)Pending hearing and final disposal of this petition,
Your Lordships may be pleased to stay the
implementation, execution and operation of the award
dated 21.9.2023 Annex-A passed by the Presiding
Officer, Industrial Tribunal, Jamnagar in Reference (I.T.)
Case No. 1 of 2022.
(c) Your Lordships may kindly be pleased to pass such
other and further order which deem fit in the interest of
justice."
3. It is the case of the petitioner that the workman
Dahyalal Trikambhai Sagathiya raised an industrial
dispute through respondent no.1 claiming permanency in
the category of Class 3 employees with effect from
1.10.2013 and further sought the ancillary benefits
attached to the said post along with arrears.
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3.1 The workman's claim was contested by the petitioner
inter alia, pointing out that the workman was engaged as
a daily wager, without following the due recruitment
process and was required to work only as per the work
requirement of the petitioner's institution and that he was
not entitled to claim the benefits as sought for.
3.2 Pertinently, the workman had also raised a dispute at
an earlier point in time alleging wrongful termination by
the petitioner, being Reference (L.C.J) No. 49 of 2013,
which was adjudicated vide award dated 4.5.2017
granting reinstatement along with continuity of service,
against which the petitioner had preferred Special Civil
Application No. 20075 of 2017 before this Hon'ble Court
and vide order dated 29.11.2019, this Court disposed of
the said proceeding while modifying the aforesaid award
to the extent that his continuity of service would be from
September 2013 and the period from 1994 to September
2013 would be treated as 'dies-non' and further directed
the petitioner to re-instate the workman.
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3.3 Without considering the relevant aspects and material
issues, the Presiding Officer, Industrial Tribunal,
Jamnagar vide his award dated 21.9.2023 partly allowed
the reference filed by the workman inter alia directing
the petitioner to appoint the workman as a Class-III
permanent employee with effect from 1.10.2013 on the
concerned post and in absence of availability of such post,
the workman be adjusted on any other post in Class-III
and to discharge other dues in accordance with the
Government Resolution dated 17.10.1988.
3.4 Being aggrieved and dissatisfied with the impugned
award the petitioner has preferred present petition.
4. Heard Mr. Prateek Khubchandani, learned Counsel
for M/s. Vyas Associates for the petitioner and Mr. U.T.
Mishra, learned Counsel for the respondent.
5. Mr. Khubchandani, learned Counsel for the
petitioner has submitted that the Tribunal has exceeded
its jurisdiction and has decided the reference of the
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concerned workman beyond the terms of the reference
and therefore, the impugned award passed by the
Tribunal is illegal and unjust. He has also submitted that
in the earlier round of litigation, the petitioner has
preferred petition before this Court being Special Civil
Application 20075 of 2017, which came to be decided by
this Court on 29.11.2019, whereby this Court has
disposed of the petition with an observation that the
continuity of service shall be w.e.f. September 2013 and
period from 1994 to September 2013 shall be treated as
dias-non and thereafter, the reference came to be filed
whereby, the Tribunal has given direction beyond the
scope of the terms of reference and therefore, under such
circumstances, present petition deserves to be allowed
and the impugned order passed by the Tribunal deserves
to be quashed and set aside.
5.1 In view of above submissions, Mr. Khubchandani,
learned Counsel for the petitioner submits that the
impugned order passed by the Tribunal is not in
consonance with the settled legal principles and
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therefore, the same may be quashed and set aside.
5.2 Mr. Khubchandani, learned Counsel for the
petitioner has referred to and relied upon the judgment of
this Court dated 4.5.2001 Sureshkumar Dodia vs.
Chief Officer / President passed in Special Civil
application No. 7 of 2001 and Civil Application No.
3593 of 2001 and submitted that while exercising the
jurisdiction under Articles 226 and 227, the Court has
very limited scope, however under the facts of the
present case, this Court may exercise the jurisdiction, as
the industrial Tribunal has no power to issue a mandamus
and the specific direction recorded by the industrial in
operative part of the order is completely erroneous and
illegal unjust and thus, the petition deserve to be allowed.
6. Per contra, Mr. Mishra, learned Counsel for the
respondent has candidly urged that since the industrial
Tribunal has decided the issue beyond the scope of terms
of reference while issuing the direction to the petitioner,
petition may be remanded back to the concerned Tribunal
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to decide the reference afresh, after going through the
facts of the case and after giving proper opportunity to all
the concerned and consider the submissions, which shall
be made before the concerned Tribunal in accordance
with law.
7. I have considered the submissions canvassed by
both the sides and perused the record of the petitions. I
have also gone through the relevant papers and the
documents as well as impugned Award passed by the
Tribunal.
8. It appears that earlier this Court has decided the
petition preferred by the petitioner, whereby specific
directions were given by this Court and considering the
fact that the Industrial Tribunal has exceeded its
jurisdiction by giving direction in the nature of
mandamus, which is contrary to the settled principle of
law. Therefore, under such circumstances, the impugned
award dated 21.9.2023 passed by the Industrial Tribunal,
Jamnagar in Reference (I.T.) Case No. 1 of 2022 is hereby
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quashed and set aside and the mater is remanded back to
the concerned Tribunal for the purpose of deciding
reference afresh, after giving proper and full opportunity
to all the concerned and after considering the
submissions and the documentary evidence produced
before the concerned Tribunal. The same shall be decided
as expeditious as possible. It is hoped that the learned
Counsel appearing for both the sides, will cooperate to
the Tribunal in deciding the reference afresh, without
seeking any unnecessary adjournment before the
Tribunal. The Tribunal shall decide the reference a fresh
without influenced by the observations made by the
earlier bench of this Court or by this Court.
9. For the foregoing reasons, the petition is hereby
partly allowed. Rule is made absolute to the aforesaid
extent. Accordingly, the petition stands disposed of.
Direct service is permitted.
Sd/-
(HEMANT M. PRACHCHHAK,J)
SURESH SOLANKI
