TORRENT POWER LTD. Vs. GUJARAT AUDHYOGIK KAMDAR MAHAMANDAL

JUDGEMENT

(1.) By the present petition filed under Art. 226 of the Constitution of India, the petitioners have challenged the order dated 28.3.2016 passed by the Deputy Labour Commissioner making reference in exercise of the powers under section 10(1) of the Industrial Disputes Act, 1947 ("the Act") as also the notice dated 22.4.2016 issued by the Industrial Tribunal, Ahmedabad ("the Tribunal") in Reference (IT) No. 94 of 2016.

(2.) Learned Senior Advocate Mr. Mihir Joshi appearing with learned Advocate Mr. K.B. Naik for M/s. Trivedi & Gupta, Advocate for the petitioners submitted that the reference made is for permanency benefits for the workers who are not working as contractor's workers with the petitioners after 2014. Mr. Joshi submitted that reference for permanency benefits like absorption can be made for the workers who are in employment, however, since they have not worked with petitioner after 2014, the reference is incompetent. Mr. Joshi submitted that if the contractor's workers are not working with the petitioners, it cannot be said that industrial dispute existed between the workers and the petitioners. Mr. Joshi submitted that simply because one of the terms of the reference is as regards reinstatement of the workers, that would not be a ground to make the reference as under the guise of raising dispute for reinstatement, for alleged illegal action of relieving the workers before about 2 years, the concerned authority was not justified in exercising the powers under section 10(1) of the Act. Mr. Joshi submitted that the reference made is invalid and the notice issued by the Tribunal based on such reference cannot be termed as legal notice and, therefore, the order making reference and the notice issued by the Tribunal both are required to be quashed and set aside. Mr. Joshi has relied on the decision of the Honourable the Supreme Court in the case of Oshiar Prasad v. Employers in relation to Management of Sudamdih Coal Washery of M/s. BCCL, Dhanbad, Jharkhand reported in (2015) 4 SCC 71.

(3.) The Court, having heard the learned Senior Advocate Mr. Joshi for the petitioners and having perused the terms of reference with the order dated 28th March, 2016, finds that the reference made under the impugned order is not for absorption or regularisation of the services of the workmen on the ground that they have been in service for a long time. The reference made is in two parts. One is that whether services of the workers shown in Schedule-A working with the petitioner No.1 Company as Meter Reader are illegally terminated from 1.12.2014 on termination of the so called contract and they should be reinstated in service with continuity of service and back wages or not? The second part of the reference is that the so called contract between the petitioner No.1 Company and the contractor for the work of meter reader was sham, bogus, eye-wash, camouflage, and only paper arrangement and the work of meter reading is permanent work without which the petitioner no.1 cannot function and, therefore, whether the workmen shown in schedule - A should be given the pay and other benefits by treating them as permanent workers from the date of their entry in service or not. The above terms of reference would go to suggest that the first part of the reference is in connection with the industrial dispute as regards alleged illegal termination of services of the workmen shown in Schedule-A. The second part of the reference is for deciding the industrial dispute as to whether the contract under which the workers were employed to work with petitioner no.1 company was bogus, sham, eye-wash and camouflage and was just paper arrangement and for grant of benefits available to the permanent employees of petitioner to the workers shown in schedule A by treating them as permanent employees of petitioner no.1. Therefore, from the terms of reference, it does not appear that the reference is for deciding the dispute on the question of absorption or regularisation of the workers. When the dispute raised by the union is relating to the question as to whether the services of the workmen were illegally terminated from 1.12.2014 in the name of termination of contract, the dispute referred for such question could well be decided by the Tribunal and if it is found that in the name of termination of the contract, the services of the workers were illegally terminated, the Tribunal in the context of the other part of the reference as to whether the contract was sham, bogus or camouflage, can certainly exercise the jurisdiction on the question of grant of reinstatement in service with other benefits as per the reference. If the tribunal is to hold that the contract was sham, bogus or camouflage, and was just paper arrangement made to deprive the workers from getting benefits of permanent employees,it can very well confer the benefits of permanent employees to the workers by treating them as permanent employees of petitioner no.1 company. In the case of Oshiar Prasad (supra), the reference was made in the following terms: