The court established that the burden of proof regarding employee numbers lies with the Union, and failure to provide such evidence negates the requirement for a notice of change under the Gujarat Industrial Relations Act.

JUDGMENT :

A.S. SUPEHIA, J.

1. The present Letters Patent Appeal emanates from the judgment and order dated 05.04.2024 passed in the captioned writ petition filed by the respondent-Junagadh District Co-operative Bank Ltd. wherein and whereby the learned Single Judge has allowed the writ petition by setting aside the judgment and order dated 27.06.2019 passed by the Industrial Court, Rajkot confirming the order dated 11.02.2019 passed by the Labour Court, Junagadh.

ACKNOWLEDGED FACTS:

2. The orders dated 27.06.2019 and 11.02.2019 stem out of recruitment/advertisement issued by the respondent-Bank for filling up certain posts. The advertisement appears to have been issued on 10.05.2018. The appellant-Union questioned the same before the Labour Court by filing an application under Section 79(4) of the Gujarat Industrial Relations Act, 1946 (‘the Act’ for short) before the Junagadh Labour Court, Junagadh, which culminated into BIR Application No. 1 of 2018. The issue raised by the appellant-Union was that before issuing the advertisement, no notice of change, as required under Section 42 of the Act has been issued by the employer-Bank. It was alleged that the same is an illegal change and in violation of the terms of the settlement. The Labour Court allowed the application filed by the appellant-Union vide order dated 11.02.2019 and it is held that the action of the respondent-Bank is an illegal change as per the provisions of Section 46 of the Act. The respondent-Bank assailed the said order before the Industrial Tribunal, Rajkot by filing an appeal under Section 84 of the Act, which was rejected vide order dated 27.06.2019. The rejection gave rise to the captioned writ petition, which has been allowed by the learned Single Judge.

SUBMISSIONS ON BEHALF OF APPELLANT-UNION:

3. Learned advocate Mr. Buch appearing for the appellant-Union has referred to the definition of ‘change’ as stipulated in sub-section 8 of Section 3 of the Act, which means ‘an alteration in Industrial matter’ and the ‘Industrial matter’ has been defined under sub-section 18 of Section 3 of the Act, which means ‘any matter relating to employment, work, wages, hours of work, privileges, rights or duties of employers or employees or the mode, terms and conditions of employment’. While referring to the provisions of Section 42 of the Act, he has submitted that as per the provisions of sub-section (1) r/w Item-2 of Schedule-II , the respondent-Bank was required to issue notice of change before issuing the advertisement for filling up 154 posts at different levels. It is submitted that as per the provisions of Item-2 of Schedule-II to Section 42 of the Act, any permanent or semi-permanent increase in the number of persons employed or to be employed in any occupation or process or departments of the respondent-Bank necessitates notice of change and only after consultation with the appellant-Union, which is an approved Union, the recruitment process could have been undertaken. Learned advocate Mr. Buch has pointed out the advertisement and has submitted that as per the number of posts which are advertised for filling up, more particularly, posts of Junior Officer, the respondent-Bank has bifurcated these posts. It is contended that the number of posts of Junior Officers, Clerks and Peons are sought to be filled in would result in increase of persons to be employed amounting to illegal change hit by section 46 of the Act, hence the same is illegal and impermissible without issuance of notice of change, as per section 42(1) of the Act.

4. Learned advocate Mr. Buch has referred to the settlement arrived at between the Union and the Bank in the year 2005. He has referred to Clause 17 of the said settlement, which pertains to staffing pattern, and it is submitted that as per the said settlement, the pattern of the staff is to be revised by mutual discussion on the guidelines of Reserve Bank of India and National Bank for Agriculture and Rural Development (NABARD) however, the Ban