MUNICIPAL AND PANCHAYAT EMPLOYEES Vs. STATE OF GUJARAT

JUDGEMENT

(1.) The Kalol Nagarpalika was running a single bus transport service Since it was running in loss as evidenced by the statement filed as Annexure to the affidavit-in-reply it was decided on 1/09/1986 to close it down. At the relevant point of time when this decision was taken the staff strength so far as the transport undertaking was concerned was of 15 employees. The Nagarpalika therefore served these employees with notice dated 14/10/1986 whereunder their services would stand terminated With effect from 17/11/1986 To put it differently the Nagarpalika gave one months notice to the employees of the transport undertaking proposed to be closed and terminated their employment. The Municipal Panchayat Employees Union reacted by serving the Nagarpalika with a notice dated 21/10/1986 under sec. 22 of the Industrial Disputes Act 1947 (herein after called the Act) to proceed on strike. Along with the notice a statement of reasons for the decision to proceed on strike and a list of employees affected by the termination order and required to be restored to their original post or accommodated elsewhere in the same time-scale were appended as Annexures A and B respectively to the notice. Soon after the service of this notice and before the termination order took effect the Union filed the present petition under Art. 226 of the Constitution of India and obtained an ex parte order for the maintenance of status quo. On notice being issued the respondent Nagarpalika filed an affidavit-in-reply stating that the transport undertaking being a distinct undertaking of the Nagarpalika had to be closed because it was running in losses and the bus was out of order. Notices had there fore to be issued to the employees for terminating their services. It is therefore contended on behalf of the Nagarpalika that its action to close down the transport undertaking was bona fide as it could not bear further financial losses. The Nagarpalika therefore contends that the petition is clearly misconceived and deserves to be dismissed in limine. ............................. ............................... .............................................

(2.) The learned counsel for the petitioner next invited our attention to sec. 22 of the Act which inter alia posits that no person employed in a public utility service shall go on strike in breach of contract without giving to the employer notice of strike within six weeks before striking. On such a notice being given he contended that conciliation proceedings must be deemed to have commenced from the date of notice of strike as envisaged by sec. 20 of the Act. In the present case since the Union had given a strike notice of 21/10/1986 as required by sec. 22 of the Act the conciliation proceedings must be deemed to have commenced from the date of receipt of the said notice by the employer by virtue of sec. 20 of the Act. He next invited our attention to sec. 33(1)(a) which lays down that during the pendency of any conciliation proceeding before a conciliation officer in respect of an industrial dispute no employer shall in regard to any matter connected with the dispute alter to the prejudice of the workmen concerned in such dispute the conditions of service applicable to them immediately before the commencement of such proceeding. Counsel submitted that since conciliation proceedings had commenced on receipt of the notice of strike dated 21/10/1986 sec. 33(1)(a) came into play and the termination of service of the workmen belonging to the transport undertaking with effect from 17/11/1936 was clearly in violation thereof.

(3.) On the other hand counsel for the respondents submitted that the decision to close down the undertaking was taken by the General Board of the Nagarpalika on 18/08/1986 and accordingly the undertaking was closed down with effect from 1/09/1986 and the employees were served with one months notices terminating their services. Thus on the date of the receipt of the strike notice under sec. 22 of the Act the undertaking was no more in existence and hence sec. 33(1)(a) did not apply. Besides as the termination notices also preceded the strike notice the management could not be said to have altered to the service conditions during the pendency of conciliation proceedings so as to attract sec. 33(1)(a) of the Act. Lastly it was said that the undertaking was not a public utility service and hence the case did not attract sec. 22 and the fiction of sec. 20 to invite the application of sec. 33(1)(a) of the Act.