SCA/255820/2008 1/8 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 2558 of 2008 To SPECIAL CIVIL APPLICATION No. 2562 of 2008 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to the civil judge ? ========================================================= EXCEL CROP CARE LTD. - Petitioner(s) Versus STATE OF GUJARAT & 1 - Respondent(s) ========================================================= Appearance : MR MANISH R BHATT for Petitioner(s) : 1, MR KRUNAL D PANDYA AGP for Respondent(s) : 1, NOTICE SERVED BY DS for Respondent(s) : 1, UNSERVED-REFUSED (N) for Respondent(s) : 2, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 19/09/2008 ORAL JUDGMENT 1. RULE. Learned advocate Mr.D.P. Vora with Mr.J.S. Brahmbhatt and learned A.G.P. Mr.Krunal D. Pandya waive service of notice of Rule for respondent No.2 and respondent No.1 respectively. By consent of learned advocates of all the parties, matters are fixed for final SCA/255820/2008 2/8 JUDGMENT hearing forthwith. As the parties are common in all the matters and the issue is identical, all the matters were heard together and disposed of by this common judgment. 2. The petitioner-employer has preferred these petitions, challenging order dated 11.12.2006 passed by respondent No.1 referring the matter to the Labour Court for adjudicating the industrial dispute raised by the respondent-workman, on the ground that the said order ought not to have been passed by respondent No.1 as it is also illegal and amounting to passing an order contrary to the principles of natural justice as well as contrary to the observations of this Court made in the writ petition where, the same parties were before the Court. 3. Facts in brief deserve to be set out as under:- 4. The concerned workman and the petitioner-employer, during the course and pendency of Reference (IT) No.2 of 1991 (old number) and Reference (IT) No.296 of 1991 (new number), arrived at a settlement with regard to their differences and ultimately, the award was invited in terms of settlement dated 18.06.1992. 5. As per the terms of settlement, both the parties were enjoined to act in accordance with the terms of settlement. It was also in terms of the settlement that in case of any dispute with regard to implementation and/or the question arising out of implementation of the said settlement, the parties will have to resolve the dispute through its Committee consisting of representatives of the Union and the Industry. The settlement worked for all these years and ultimately, as SCA/255820/2008 3/8 JUDGMENT per the say of the respondent-workmen, in the year 2004, despite the settlement, they were terminated and their junior-badli workers, were continued and made permanent dehors the terms of the settlement. Two of the present respondents, namely Chanabhai Kalabhai Sanchia and another, preferred Special Civil Application No.10703 of 2006 making grievance with regard to breach of the terms of settlement wherein, this Court (Coram: H.K. Rathod, J.) on 22.06.2006 passed order in light of the Apex Court decision in case of Air India Ltd. Vs. Vishal Kapoor reported in 2005 III LLJ 1029. The writ petition would not be maintainable for such a grievance and the Court did not entertain the petition. However, liberty was reserved to approach the authority under the machinery of I.D. Act, 1947. The demands were raised and Conciliation Officer entered upon the conciliation. It is stated that despite issuance of notice, no action was taken, or reply was filed in answer to the demands and notice issued by the Conciliating Authority. The failure was recorded and the reference was made. Though, it deserves to be noted at this stage that it is the say of the petitioner- employer that the notice issued was not received and as could be pointed out from the affidavit filed by respondent No.1 that the reply of the petitioner-industry was, in fact, submitted to the concerned clerk in the office on 20.11.2006. However, the said was not taken into consideration as, by then, a decision to refer the disputes for adjudication had already been taken and accordingly, orders came to be passed on 11.12.2006. The said orders are impugned in these group of petitions. 6. Learned senior counsel Mr.M.R. Bhatt vehemently submitted that the impugned order ought not to have been SCA/255820/2008 4/8 JUDGMENT passed in view of the fact that the settlement arrived at between the parties during the course of pending reference is a settlement under Section 2(p) of the Act and, as such, has a binding effect and even as per the terms of settlement, it can be said to be enuring and when there being no notice for modification or revoking, the same shall enure. It is also a condition incorporated in the settlement that the parties shall act in accordance with settlement and in case of any dispute with regard to interpretation and/or question arising out of the interpretation and implementation of the settlement, the same shall be resolved by the Committee consisting of the representatives of the industries as well as those of workmen and the decision of the committee shall be binding. In light of these terms of settlement, it would not open to the respondents to treat it as dispute deserving a reference only on account of absence of the industries during the conciliation proceedings. 7. Learned counsel Mr.Bhatt also contended that due to some discrepancy, the matter was required to be brought to this Court by way of Special Civil Application which, order wherein was taken into Letters Patent Appeal No.364 of 2003 wherein, this Court also passed order on 29.04.2003 wherein, it is reiterated that the parties will abide by the terms of settlement now, therefore, the entire controversy could have been said to have rested and all the parties were under the duty to abide and implement the settlement as it is. Mr.Bhatt, in alternative, without prejudice to the aforesaid, submitted that assuming for the sake of examining that the workmen did have grievance with regard to SCA/255820/2008 5/8 JUDGMENT interpretation and/or implementation or breach of terms of the settlement, then also without first referring the matter to the Committee envisaged under the very settlement; the industrial dispute could not have been raised and it ought not to have been referred to the Court for adjudication on the terms mentioned therein. 8. Mr.Bhatt, further submitted that respondent No.1 has not taken the reply filed by the present petitioner on 20.11.2006 though it has, by now, come on record with the reply which was available on the file of the conciliation proceedings and, therefore, the order which had been passed on 11.12.2006 ought to have been passed only after taking into consideration the reply. He submitted that, therefore, the order impugned deserves to be quashed and set aside. 9. Learned counsel Mr.Vora with Mr.Brahmbhatt for respondent No.2-workman submitted that the order of reference cannot be said to be vulnerable from any angle as even this Court in Special Civil Application No.10703 of 2006 in its order dated 22.06.2006 has given liberty to approach the appropriate authority under the machinery of Industrial Dispute Act, 1947. Mr. Vora further submitted that the committee which is referred to by the counsel for the petitioner, as committee formed under the settlement and required to be consulted, would not be an appropriate and competent committee to give its interpretation on the issues with regard to the industrial dispute which is raised and, therefore, the workmen were not required to refer or take the matter to the committee as contended by the counsel for the petitioner. SCA/255820/2008 6/8 JUDGMENT 10. Mr.Vora further submitted that the petitioner- industry has chosen not to appear before the Conciliation Officer and it is not their case that no notice was issued without going into the question of receiving of notice suffice it to say that the petitioner-industry had not remained present before the Conciliation Officer and the conciliation authority had to pass appropriate order referring the dispute to the concerned Court. Now, as the matter has already been referred to the Labour Court, this Court may not interfere with the order impugned as the matter is, now, going to be adjudicated by the competent Labour Court. 11. Heard learned counsel for the parties. This Court has perused the settlement which is press into service by both the parties, the subsequent proceedings and orders including the orders made in L.P.A. and the order made by this Court (Coram: H.K. Rathod, J.) in Special Civil Application No.10703 of 2006. The fact remains to be noted that the conciliation proceedings did not yield any result in resolving the dispute. However, as it has come out from paragraph '6' of the affidavit-in-reply filed by respondent No.1, affirmed on 27.02.2008, that “the petitioner did not remain present but on the last date of meeting i.e. 20.11.2006 submitted reply to the registered clerk as on that date, meeting had already been over and decision was also taken up.” That reply was not considered. It deserves to be noted that the conciliating authority and referring authority are same in the present case, as could be seen from the order impugned. This Court is of the considered view that the conciliating SCA/255820/2008 7/8 JUDGMENT authority which had passed order on 11.12.2006 i.e. after lapse of about 20 days ought to have taken into consideration the reply of the petitioner-employer as reply did have bearing upon the entire dispute sought to be raised before the conciliating authority and it was ordered to be referred for adjudication to the Labour Court. This Court need not go into the merits of these rival contentions at this stage as otherwise it would adversely affect the stand of the parties before any adjudication by the competent authority. However, as the industrial dispute is referred without taking into consideration the reply and especially when the petitioner has contended that the conciliation notice was not received by it, without going into that controversy, it is ordered in the interest of justice that the conciliating authority may take into consideration the rival submissions of both the parties and come to a fresh conclusion on conciliation and the decision with regard to making of reference. As this direction is being issued, the orders of reference impugned in these petitions are required to be quashed and set aside and accordingly, they are quashed and set aside. It is the dispute with regard to year 2004, the Conciliation Officer is expected to conciliate as expeditiously as possible especially when both the parties have assured that they will co-operate and avoid seeking avoidable adjournments, the conciliation proceedings shall be completed within a period of three months from the date of receipt of writ of this order. The apprehension of Mr.Vora with regard to non-offering employment as and when the work would be available with the petitioner- company, is allayed by Mr. Bhatt's assurance that both the parties are, in fact, working in accordance with the SCA/255820/2008 8/8 JUDGMENT settlement and they would continue to act in accordance with the terms of settlement. With these observations, the petitions are allowed and Rule is made absolute only to the aforesaid extent. However, there shall be no order as to costs. (S.R.BRAHMBHATT, J.) Hitesh