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2002 Supreme(Guj) 189
Gujarat High Court
Judgename :RAVI R.TRIPATHI
SWASTIK TECHNOMECH PRIVATE LIMITED - Appellant
Versus
STATE - Respondent
S.C.A. 8597 of 2001
Decided On : 03/08/2002
Headnote:Constitution of India, 1950 — Art. 226 — Challenging the order of reference dated 9.8.2001 — Whether reference validly made — From the papers produced before Court it is very clear that petitioner company is not given any intimation by sending a copy of the complaint received from the respondent workman and it is also not intimated about the conciliation proceedings and its result — Therefore, as required in the case of order of reference minimum requirement of procedure is not followed resulting in violation of the principles of natural Justice — That apart in the facts on receipt of telephone message and having talk with respondent-petitioner company wrote a Regd. Post A.D. letter dated 18.6.2001 and sent amount by M.O. — Respondent, therefore, did not choose to remain present before the Court and thus indirectly corroborated the submission — In the facts and circumstances, the order of reference dated 9.8.2001 not validly made it is hereby quashed and set aside.
Without going into the intricacies of law as to whether in the facts of the case and in view of the provisions of Sec. 2-A of the I.D. Act, wherein it is provided that in the case of dismissal of even an individual workman, `an industrial dispute is deemed to have in existence and, therefore, the authorities could have made the reference. Without going to the provisions of Sec. 10(1) wherein it is provided that the appropriate Government of its own, when an industrial dispute exists or is apprehended, can make a reference. The present case is decided on the short ground that learned AGP is not able to satisfy the Court that an intimation was sent to the petitioner company.
[Para 15]
When the petitioner company is not given any intimation by sending a copy of the complaint received from the respondent workman and is not intimated about the conciliation proceedings, the order of reference could not have been made.
[Para 16]
There cannot be any dispute that even in the case of `order of reference minimum required of procedure, is to be followed. while following this procedure it is to be assured that there is no violation of principles of natural justice. In the present case, after having received a letter of complaint dated 23.5.2001 by the Authorities, the same ought to have been sent to the employer. The learned Asstt. Government Pleader is not able to show that the said letter of complaint dated 23.5.2001 was sent to the petitioner company. If that is so, on the ground of `violation of principles of natural justice, the order of reference deserves to be quashed and set aside. Mr. Desai submitted that making a reference is a mater of discretion of the Officer. If he comes to the conclusion that there is an existing industrial dispute, he can make the order of reference. There is no dispute about this proposition of law that if there an existing dispute, after following the necessary procedure under Sec. 12 of the I.D. Act, an Officer can make a reference, but while so doing, `principles of natural justice cannot be given a go by is also equally important.
[Para 18]
Learned advocate for the petitioner submitted that in the present case, assuming for the sake of argument that this point is not available to the petitioner company, then in the alternative his submission is that on 16th June, 2001 the respondent workman had telephoned the petitioner company and had requested to allow him to resign as he was not willing to work with the company and requested the company to send his dues at his residential address after accepting his oral resignation. Learned advocate for petitioner submitted that pursuant to this telephonic talk, the company wrote a Regd. Post A.D. letter dated 18.6.2001 which was received by the respondent workman on 20.6.2001 and the amount sent by money order was also received by the respondent workman. This aspect of the matter is not controverted by the respondent workman. He has chosen not to remain present before the Court and, thus, his submissions are indirectly corroborated. The respondent workman despite service of process of this Court as back as in the month of September, 2001 has chosen not to remain present before the Court. The submission of learned advocate deserves to be accepted and the same is accepted.
[Para 19]
( 1 ) THE present petition is filed by the petitioner company challenging the order of reference dated 9. 8. 2001, a coy of which is produced at Annexure-K to this petition.
( 2 ) TO appreciate the controversy involved in the petition, few facts are necessary. 2. 1 the respondent workman with two other workmen stopped reporting for duty on 5. 1. 2001. The petitioner company wrote a letter on 8. 1. 2001 asking the respondent workman to resume the duty, copy of the said letter is produced at Annexure-A. The petitioner company wrote another letter on 11. 1. 2001 by Redg. Post A. D. , a copy of which is produced at Annexure-B. Though both these letters were addressed to the same address only letter dated 11. 1. 2001 was served while the earlier has returned to the petitioner company. 2. 2 the petitioner company received a notice from the Assistant Commissioner of Labour dated 8. 1. 2001, intimating that the hearing of the conciliation proceedings was fixed on 30. 1. 2001. The petitioner company, wrote yet another letter to the respondent workman dated 17. 1. 2001 asking him once again to report for duty. The said letter also returned unserved to the petitioner company. The petitioner company then wrote another Redg. Post A. D. letter dated 9. 2. 2001 asking respondent workman to report for duty. The said letter was served to the respondent workman. 2. 3 the petitioner company received another letter dated 27. 3. 2001 from the Commissioner of Labour intimating that the final date of conciliation proceedings is 26. 4. 2001. In response to that, the petitioner company wrote a letter on 16. 4. 2001 to the Assistant Commissioner of Labour requesting to adjourn the hearing of the proceedings. The petitioner company then wrote a letter dated 15. 5. 2001 to Assistant Commissioner oflabour informing him that the respondent workman has resumed duty on 27. 4. 2001 and, therefore, the question of reinstating him does not survive. The petitioner company also pointed out in that letter that respondent workman was giving low production as compared to his earlier performance and, therefore, he should be persuaded to give full production. Copy of the letter dated 15. 5. 2001 is produced at Annexure-F to this petition. 2. 4 the petitioner company then served a show cause notice dated 19. 5. 2001 to the respondent workman for his gross negligence and irregularities in attendance which were resulting in financial loss to the company. The respondent workman when reported for duty on 21. 5. 2001, on that day, he did not perform the work assigned to him by his Superior Officer and created a commotion and left the work. He did not report for duty thereafter. The petitioner company wrote a Redg. Post A. D. letter dated 23. 5. 2001 to the respondent workman asking him to report for duty and also to submit his explanation to the show cause notice dated 19. 5. 2001. The letter dated 23. 5. 2001 was served to the workman on 26. 5. 2001. 2. 5 on 18. 6. 2001, the petitioner company wrote another letter by Regd. Post A. D. which was served to the respondent workman on 20. 6. 2001. In this letter it was stated that the respondent workman had telephoned the petitioner company on 16. 6. 2001. He requested the company to permit him to resign and informed the company that he does not want to work with the company. The respondent workman asked the company to send his dues at his residential address after accepting his oral resignation. The petitioner company informed the respondent workman that the company will send his dues by a money order. A copy of the letter dated 18. 6. 2001 is annexed to the petition as Annexure-I. 2. 6 the petitioner company received an order dated 23. 7. 2001 from the State Government, whereby the dispute regarding back wages from 5. 1. 2001 to 26. 4. 2001 is referred to the Labour Court at Ahmedabad. It is required to be noted that this order of reference "dated 23. 7. 2001 whereby the dispute about the back wages from 5.
