P I INDUSTRIES LIMITED Vs. STATE OF GUJARAT

JUDGEMENT

(1.) In this petition under Article 227 of the Constitution of India the petitioner Company has been praying for holding and declaring that the Order of Reference dated 24-9-2002 (Annexure-A) is without jurisdiction and authority-in-law and therefore, void and non-est; further holding and declaring that the ex parte order dated 7-10-2002 (Annexure-B) is also beyond the scope and purview of the terms/order of Reference and without jurisdiction and that, both the impugned orders (Annexure- A and B) are violative of Article 14 and 19 (i)(g), arbitrary, discriminatory, oppressive, unjust, irrational and bad in law and to pass an order or direction quashing and setting aside the impugned orders.

(2.) The say of the petitioner is that, respondent No.3 is an employee of the petitioner Company as D.G. Set Operator; that respondent No.3 was reportedly indulging into the acts of omission and commission amounting to misconduct of not following the instructions and orders of superiors and of willful insubordination or disobedience, the Company issued showcause notice dated 16-4-2002 to respondent No.3, and then as a penalty suspended for 3 days. That due to administrative reasons and exigencies of work respondent No. 3 came to be transferred by an order dated 4-6-2002 (Annexure-C) to Udaipur; that the said order has been duly issued and served on respondent No.3, that the said transfer order stipulates (i) during period he is located at Udaipur an additional amount of Rs.500.00 will be paid to him; (ii) he can draw an advance upto Rs.5000.00 to be accounted for on joining duty at Udaipur towards cost of transportation etc; and that the said transfer order, with the aforesaid two stipulation was duly served and was accepted by respondent no.3 on 5-6-2002 and from 5-6-2002 respondent No.3 stood relieved from Panoli plant; that in pursuance of the stipulations in the said transfer order respondent no.3 made an application on 5-6-2002 demanding an advance of Rs.5000.00 stating that since his transfer was effected to Udaipur he required said amount of Rs.5000.00 for transporting his luggage etc; that said amount of Rs.5000.00 was paid to him on same day i.e. on 5-6-2002 itself; that respondent No.3 was required to report at transferred place i.e. Udaipur on/or before 12-6-2002 as per instructions/ directions in the said transfer order; that instead of reporting at Udaipur and resuming his duty there, respondent No.3 forwarded applications on one pretext or the other and did not report for duty at Udaipur. In view of the adamant defiance of office order by respondent no.3 another order was sent to respondent no.3 on/or about 10-7-2002 directing him to report for duty at Udaipur. That respondent No.3 went on applying for leave on one pretext or the other and that while on one hand respondent no.3 made applications for leave, on the other hand he approached this Court by way of Special Civil Application No. 5820 of 2002 praying for stay / not implementing the transfer order and also directing the Commissioner of Labour to hold conciliation proceedings. On or around 1-10-2002 this Court was informed that the Deputy Labour Commissioner, Vadodara, had already referred the matter to Industrial Tribunal, Vadodara, by order dated 24-9-2002 and in that view of the matter present respondent withdraw said Special Civil Application No. 5820 of 2002. The order of Reference dated 24-9-2002 impugned in the present petition has been made by Incharge- Dy. Labour Commissioner, Vadodara and the same culminated into Reference (I.T.) No. 138 of 2002. On or around 3-10-2002 office of the Industrial Tribunal issued notice to the petitioner intimating about the subject reference proceedings, which was received by the petitioner on/or around 7-10-2002. That the petitioner Company has, as on 16-10-2002, not received any statement of claim from respondent No.3; that as respondent No.3 was not reporting for duty at his transferred place i.e. Udaipur and was remaining absent on one pretext or another the Company was constrained and left with no alternative but to issue chargesheet dated 1-9-2002 and the same was served on respondent no.3. Departmental inquiry proceedings have been initiated and have commenced at Udaipur from 9-10-2002. That respondent no.3 instead of filing statement of claim in the reference proceedings, without giving copy to the petitioner submitted an application dated 7-10-2002 praying inter alia for an injunction/ direction against the petitioner to postpone /stay the above referred departmental proceedings and also to stay the implementation/ operation of transfer order dated 4-6-2002; that the Industrial Tribunal without issuing notice to the petitioner, straightaway granted ex-parte injunction/stay order staying proceedings of departmental inquiry which had already commenced at Udaipur with issuance and service of the chargesheet dated 13-9-2002 and the hearing of which was scheduled for 9-10-2002; that the said order/ direction is beyond territorial jurisdiction in as much as it relates to an inquiry which has been initiated and commenced at Udaipur; that the said order is contrary to the settled legal position relating to the relief for staying proceedings of departmental inquiry; that as per provisions u/s 10 of I.D. Act the order of Reference could have been, if at all, it had to be made, should have been made by the Labour Commissioner as the petitioner Company is employing more than 100 workmen and therefore petitioner is constrained to approach this Court at this stage against said two orders. Thus it would be seen that the order of Reference dated 24-9-2002 (Annexure-A) and the order dated 7-10-2002 (Annexure-B) passed by the Industrial Tribunal are impugned being without jurisdiction and authority in law besides being illegal, arbitrary, unjustified, misconceived and unreasonable.

(3.) Vide order dated 21-10-2002 this Court (Coram: R.R. Tripathi, J) issued rule and also notice as to interim relief, returnable on 26-11-2002. In the meantime ad-interim relief in terms of Para- 8 (C) that is staying the implementation and operation of order dated 17-10-2002 at Annexure-B, also staying further proceedings of Reference being Reference (IT) No. 138/2002 as well as the operation of Reference dated 24-10-2002. Therefore respondent no.3 filed Civil Application No. 8449 of 2002 under Article 226 (3) of the Constitution of India praying for vacation of the interim order passed in terms of Para-8 (C) of the petition. Vide order dated 26-11-2002 learned advocates appearing for the parties submitted that the main petition be fixed for final hearing looking to the contentions raised by the petitioner as well as the respondent. In view of the said statement main petition was directed to be fixed for final hearing on 4-12-2002 and interim relief continued and the petition has been finally heard and being decided by this order.