Paresh Upadhyay, J.@mdashBy this common judgment, total six petitions are disposed of, the details of which are as under.
2.1 In Special Civil Application Nos. 3846, 6626 and 6627 of 2013, challenge is made by the petitioner-establishment to the common award passed by the Labour Court, Bhavnagar dated 28.12.2012 allowing three References being Reference (LCB) Case Nos. 203, 204 and 205 of 2005. The said three References were by a lady named Katuben V. Makwana (Reference No. 203 of 2005), her son Jagabhai V. Makwana (Reference No. 204 of 2005) and her husband Vitthal Govindbhai Makwana (Reference No. 205 of 2005), represented by Majdoor Adhikar Sangh, Bhavnagar. By the said award dated 28.12.2012, all these three References are allowed, and direction is given to the petitioner establishment to make payment of Rs. 50,000/- each, to the lady and her husband both, and the petitioner establishment is directed to reinstate the son with 50% back wages with effect from 01.04.2005.
2.2 Special Civil Application Nos. 10358 and 10360 of 2014 are filed by the establishment, challenging the award passed by the Labour Court, Bhavnagar, which is not the common award, but are identical awards, the details of which are as under.
(i) In Special Civil Application No. 10358 of 2014, challenge is made to the award passed by the Labour Court, Bhavnagar in Reference (LCB) Case No. 124 of 2003 dated 28.03.2014, whereby concerned workman represented through Majdoor Adhikar Sangh, Bhavnagar is directed to be reinstated in service with 30% back wages from 19.03.2002.
(ii) In Special Civil Application No. 10360 of 2014, challenge is made to the award passed by the Labour Court, Bhavnagar in Reference (LCB) Case No. 123 of 2003 dated 28.03.2014, whereby concerned workman represented through Majdoor Adhikar Sangh, Bhavnagar is directed to be reinstated in service with 30% back wages from 24.03.2003.
2.3 In Special Civil Application No. 12230 of 2014 challenge is made by the establishment to the order passed by the Labour Court, Bhavnagar dated 25.04.2014 below Exh. 3, in the proceedings of Reference (LCB) Demand No. 3 of 2012. By the said order, the Labour Court has refused permission to the establishment (the proprietor) to avail the service of an Advocate to put its case before the Labour Court, in view of the objection taken by Mr. Amit Chauhan, the General Secretary of the Majdoor Adhikhar Sangh, Bhavnagar, as the representative of the concerned workmen.
3. The reason to consider these petitions together is that, during the course of hearing of this group of petitions on merits, it had transpired that, the affairs of the Majdoor Adhikar Sangh at Bhavnagar regulated by one Mr. Amit Chauhan, need some closer scrutiny. Earlier also, in number of matters before this Court, it had transpired that, the cause espoused by the said Union/Person, in many cases, prima facie, was less for the protection of the rights of the poor labourers, more for extraneous consideration, the reference to which is made hereinafter. With a view to see that, the concerned workmen, if otherwise are genuine, do not suffer because of this, this Court had requested the concerned learned advocate to ask the concerned workmen to remain present before this Court, but the concerned learned advocate, inspite of his best efforts, had failed to do so. With a view to see that, malpractise if any, at the Bhavnagar Center be curbed, before it damages the system further, the presence of the said Union and the concerned office bearer was felt necessary before this Court, and under these circumstances, this Court had passed an order on 02.09.2014 joining, inter-alia, the concerned Union i.e. the Majdoor Adhikar Sangh, Bhavnagar and Mr. Amit Chauhan, its General Secretary, in his personal capacity, as party respondents in these petitions, so that, even they can put their case before this Court. It is recorded that, the said Mr. Amitkumar Chauhan has filed affidavit dated 30.09.2014 on behalf of the Union and also on his own behalf, which is taken on record, and the contents of which are considered, while recording this judgment.
4. First the merits of each of the petition and the sustainability of the impugned awards/order need to be examined, which is as noted in para: 5 to 7 hereunder. It is also recorded that, the said orders are found to be tainted with the browbeating and arm-twisting tactics of Mr. Amit Chauhan, who is party respondent in his personal capacity in this group of petitions, the discussion for which is made in para: 8 hereunder.
5.1 In Special Civil Application Nos. 3846, 6626 and 6627 of 2013, challenge is made by the establishment to the common award passed by the Labour Court, Bhavnagar dated 28.12.2012 allowing three References being Reference (LCB) Case Nos. 203, 204 and 205 of 2005. The said three References were by a lady named Katuben V. Makwana (Reference No. 203 of 2005), her son Jagabhai V. Makwana (Reference No. 204 of 2005) and her husband Vitthal Govindbhai Makwana (Reference No. 205 of 2005), represented by Majdoor Adhikar Sangh, Bhavnagar. By the said award, all these three References are allowed, and direction is given to the petitioner establishment to make payment of Rs. 50,000/- each, to the lady and her husband both, and the petitioner establishment is directed to reinstate the son with 50% back wages with effect from 01.04.2005.
5.2 Mr. Yogen Pandya, learned advocate for the petitioner in these three petitions has submitted that it was the specific case of the petitioner establishment before the Labour Court that there was no employer employee relationship between the petitioner and the concerned respondents, and there was no legally acceptable evidence led by the respondents to show that there was any employer-employee relationship. These proceedings were taken out by the respondents to pressurise the petitioner in separate civil proceedings pending in the Civil Court, Bhavnagar. It is submitted that the impugned award be quashed and set aside.
5.3 On the other hand, Mr. U.T. Mishra, learned advocate for the respondent workmen has supported the award passed by the Labour Court and has submitted that, whether the respondents workmen were employee of the petitioner or not was a question of fact and this Court may not gone into that aspect. It is submitted that, these petitions be dismissed.
5.4 Having heard the learned advocates for the respective parties and having gone through the material on record, this Court finds from the reasons recorded by the Labour Court that, at no place, it has come on record that, on what basis the Labour Court came to the conclusion that, there was any employer-employee relationship between petitioner-establishment and respondent-workman. Even if, the arm-twisting tactic of the concerned respondents, as reflected in the impugned award, is not gone into, independently on merits also, the impugned award is unsustainable in law and the same therefore needs to be quashed and set aside.
6.1 Special Civil Application Nos. 10358 and 10360 of 2014 are filed by the establishment, challenging the award passed by the Labour Court, Bhavnagar, which is not the common award, but are identical awards, the details of which are as under.
(i) In Special Civil Application No. 10358 of 2014, challenge is made to the award passed by the Labour Court, Bhavnagar in Reference (LCB) Case No. 124 of 2003 dated 28.03.2014, whereby the concerned workman represented through Majdoor Adhikar Sangh, Bhavnagar is directed to be reinstated in service with 30% back wages from 19.03.2002.
(ii) In Special Civil Application No. 10360 of 2014, challenge is made to the award passed by the Labour Court, Bhavnagar in Reference (LCB) Case No. 123 of 2003 dated 28.03.2014, whereby the concerned workman represented through Majdoor Adhikar Sangh, Bhavnagar is directed to be reinstated in service with 30% back wages from 24.03.2003.
6.2 Mr. U.T. Mishra, learned advocate for the petitioner-establishment has submitted that both the respondent workmen had left the service on their own and no dues were outstanding, and leaving their job was wrongly projected to be the termination, and therefore no relief ought to have been granted by the Labour Court. It is submitted that, impugned awards be quashed and set aside.
6.3 On the other hand, Mr. Kishor M. Paul, learned advocate for contesting Union has submitted that, the Labour Court has not committed any error while granting relief to the workmen. He has supported the impugned awards and it is submitted that, this petition be dismissed.
6.4 Having heard learned advocates for the parties and having gone through the material on record, this Court finds that, the Labour Court has not recorded any cogent reason as to how the respondents were entitled to the relief as is granted by the Labour Court. Further, the basis for grant of relief is adverse inference drawn against the employer and on considering the totality of the matter, the impugned awards are found to be unsustainable in law, and the same needs to be quashed and set aside. It may also be recorded that, the reference to the contents of para: 8.6 may also have some relevance in this case.
7.1 In Special Civil Application No. 12230 of 2014 challenge is made by the establishment to the order passed by the Labour Court, Bhavnagar dated 25.04.2014 below Exh. 3 in the proceedings of Reference (LCB) No. 3 of 2012. By the said order, the Labour Court has refused permission to the establishment (the proprietor) to avail the service of an Advocate to put its case before the Labour Court, in view of the objection taken by Mr. Amit Chauhan, the General Secretary of the Majdoor Adhikhar Sangh, Bhavnagar, as the representative of the concerned workmen.
7.2 In Special Civil Application No. 12230 of 2014, on behalf of the petitioner it is submitted that, the petitioner is a proprietor, and the respondent is represented through a legally trained mind and there would not be any match in putting the case before the Labour Court, if the petitioner is not permitted to avail the assistance of an Advocate. It is further submitted that, the petitioner is a small trader and to expect him to be present before the Labour Court for whole day on all the dates, when the matter is to be listed for hearing, would not only be not possible for the petitioner, but would be violative of his fundamental right to carry out his trade. It is further submitted that, even if he remains present before the Labour Court, he would not be able to put his case before the Labour Court and he would not be able to meet with the procedural requirement of the Court. It is submitted that, under these circumstances, application was given to engage an Advocate, however the respondent Union raised objection and under these circumstances, the impugned order is passed. Attention of this Court is specifically invited to para: 2 of Exh. 9 application that the respondent Union is known to resort to such tactic and in the event, it is interfered with by the High Court, and give up the issue. It is submitted that, under these circumstances, the petitioner be permitted to avail the service of an Advocate. It is submitted that, this petition be allowed.
7.3 On the other hand, Mr. Kishore M. Paul, learned advocate for the respondent workman has supported the order passed by the Labour Court and it is submitted that, the order of the Labour Court is strictly in accordance with the provisions of Section 36(4) of Industrial Disputes Act, 1947 and therefore this petition be dismissed.
7.4 Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that, the issue involved in the matter is covered by the decisions of this Court rendered in (i) Special Civil Application Nos. 192 and 197 of 2013 dated 17.12.2013 [in the case of Schneider Electric India Pvt. Ltd. Vs. Kailashben R. Valand] reported in 2014(2) GLR 1264, and (ii) Special Civil Application No. 3547 of 2014 dated 17.09.2014 [in the case of Veer Textile Vs. Babubhai Sahidbhai. Further, so far the arm twisting tactic of the respondent Union with this modus operandi is concerned, reference can be made to the decision of this Court recorded on Special Civil Application No. 14442 of 2011 dated 02.05.2014, more particularly para: 6 thereof. Under these circumstances, the impugned order needs to be quashed and set aside and the petitioner is required to be permitted to avail service of an advocate.
8. Coming to the next question, as to whether any direction needs to be given to the Registrar of Trade Unions with regard to the affairs of the respondent Union and its General Secretary Mr. Chauhan, the following aspects need to be taken into consideration.
8.1 During the course of hearing of these petitions, more particularly while examining the merits of the impugned awards passed by the Labour Court as noted above, it appeared to this Court that, though the say of the concerned workman was not well founded and to some extent was not bona fide either, the fault lies less on the concerned workman but some scrutiny is required about the affairs of the respondent Union and more particularly the bona fide of its General Secretary Mr. Chauhan, who sometimes presents himself as Mr. Amit Chauhan and sometimes as Mr. Ajay Chauhan, the details in this regard are recorded hereinafter. It is not that, for the first time, this Court is constrained to observe like this. The modus operandi and lack of bona fide of the respondent Union and Mr. Chauhan, even on earlier occasion had been the matter of concern for this Court and reference in that regard can be made to the order passed by this Court in Special Civil Application No. 14442 of 2011. Since in the present group of petitions, it had become necessary to go into this aspect and further that, this Court had also thought it proper to go into it, with a view to see that, the said Union and Mr. Chauhan both get proper opportunity to put their case before this Court, they were joined as party respondents, including Mr. Chauhan in his personal capacity. Even the affidavit-in-reply dated 30.09.2014 is also filed by Mr. Chauhan putting his, as well as the case of the Union on record, which is taken into consideration.
8.2 Since this Court found prima facie something wrong with the affairs of the respondent Union and more particularly Mr. Chauhan, the concerned authorities of the Labour Department of the State of Gujarat were also joined as party respondent and the say of the said authority has also come on record by way of an affidavit of the Deputy Commissioner of Labour-Cum-Deputy Registrar of Trade Unions at Rajkot. The contents of the said affidavit dated 09.09.2014 has thrown more light in this regard. The relevant portion thereof (para: 6) reads as under.
"6. I say and submit that apart from conducting the affairs of Union in surreptitious manner, Mr. Amit Chauhan also has a habit of making all sorts of complaints against various Government Officers, including the officers of Labour Department. On receipt of various frivolous complaints the Labour Commissioner, State of Gujarat had addressed a letter to the office of the Assistant Labour Commissioner, Bhavnagar dated 06.02.2004, whereby it is being categorically stated that no action should be taken against any officer on a complaint made by Shri Amit Chauhan, until and unless the veracity of the complaint is gone into. A copy of the order dated 06.02.2004 is annexed herewith and marked as Annexure R5."
8.3 Mr. Gautam Joshi, learned advocate appearing for the Registry of the Labour Court, Bhavnagar has, after taking instructions, submitted that what is true from the perception of the officers of the Labour Department as noted above, is true in case of the Court below as well. It is submitted that, the respondent office bearer resorts to all sorts of arm-twisting and browbeating tactics to pressurise even the Presiding Officers.
8.4 It is also required to be noted that, since in this group of petitions, on behalf of the authorities of the State, Mr. Rashesh Rindani, learned Assistant Government Pleader has assisted the Court, all sorts of arm-twisting has started by said Mr. Chauhan against Mr. Rindani as well. Reference in this regard can be made to the application made by Mr. Amit Chauhan to the office of the Government Pleader at High Court of Gujarat asking information under the Right to Information Act as under. A copy of the said application is tendered to the Court by Mr. Rindani, after giving copy thereof to Mr. Kishor M. Paul, learned advocate appearing for Mr. Amit Chauhan. The information asked for is as under (Translated from Gujarati).
"1. Copy of the letter written by Mr. Rashesh Rindani, learned Assistant Government Pleader to the Commissioner of Labour, Gujarat State requesting for the presence of the Government Labour Officer, Bhavnagar on 15.7.2014 in the Court regarding the matter being Special Civil Application No. 11783 of 2013;
2. Copy of the letter written by Mr. Rindani, learned Assistant Government Pleader to the Registrar of Trade Unions with regard to filing of affidavit pursuant to the order of the Court dated 02.09.2014 in connection with Special Civil Applications No. 3846, 6626 and 6627 of 2013, and 10358 and 10360 of 2014;
3. Copy of the letter written by Mr. Rindani, learned Assistant Government Pleader to the Collector and District Magistrate, Bhavnagar and Superintendent of Police, Bhavnagar pursuant to the order dated 11.09.2014 after waiving service on their behalf and asking them to file affidavit in the matter of Special Civil Applications No. 3846 of 2013, 6626 of 2013, 6627 of 2013, 10358 of 2014 and 10360 of 2014;
4. Copy of the correspondence that Mr. Rindani, learned Assistant Government Pleader has exchanged with the Labour and Employment Department, Gandhinagar, if any in the matter of Special Civil Application Nos. 3846, 6626 and 6627 of 2013, and 10358 and 10360 of 2014;
5. Whether Mr. Rindani, learned Assistant Government Pleader had any oral instructions or written instructions of the Court asking him (Mr. Rindani) to ask Government Labour Officer to remain present before the Court in the matter of Special Civil Application No. 11783 of 2013, and if the said instruction of the Court was in writing-copy thereof, and if it was oral-details thereof.
6. Certified copy of the diary of Mr. Rindani, learned Assistant Government Pleader in which the details are recorded, what he has done, on which date, in the matters being Special Civil Applications No. 3846 of 2013, 6626 of 2013, 6627 of 2013, 10358 of 2014 and 10360 of 2014."
8.5 Further, if the tenor of the affidavit in reply filed by Mr. Chauhan is taken into consideration, in substance, it is submitted by him that there is something wrong with the professional ethics of learned advocate Mr. Umesh T. Mishra. The basis for alleging so, according to him is that, in some matters learned advocate Mr. Mishra has appeared for workmen, in some matters he has appeared on behalf of the employer in which the concerned workmen are those who are claimed to be the members of the Union run by Mr. Amit Chauhan. In the perception of Mr. Chauhan, after having appeared on behalf of certain workmen, who are members of some of the Unions of Mr. Chauhan, it was improper for learned advocate Mr. Mishra to appear for an employer, whose petition was against such workmen who are also members of the Union where Mr. Chauhan has substantial interest. In the perception of Mr. Chauhan this was improper on the part of Mr. Mishra. This Court rejects this stand of Mr. Chauhan against learned advocate Mr. Mishra in strongest words. What is perceived by Mr. Chauhan is in no way conflict of interest on the part of learned advocate Mr. Mishra.
8.6 During the course of hearing, since it had transpired prima-facie that, Mr. Chauhan is less interested to protect the rights of the poor workmen against the mighty employers, and more interested in what can be termed to be like extortion of money from the bonafide traders and employers, and as a matter of fact, it was so contended as well, and under these circumstances, while joining the State Authorities as party respondents, as noted above, even the Superintendent of Police, Bhavnagar was also joined as party respondent to enable him to place on record the material in that regard. Affidavit is filed by the Superintendent of Police, Bhavnagar dated 16.09.2014 and the contents thereof is startling. From the said affidavit and Annexure thereto, it transpires that an F.I.R. being CR-I-No. 1 of 2004 dated 05.01.2004 was registered with the C-Division Police Station, Bhavnagar, on the complaint of one Mr. Mohd. Naim Valli of Bhavnagar. The complainant had stated that, he was one of the partners who was running a hotel at Bhavnagar. In the conciliation proceedings of one of the workers of the said hotel, before the Assistant Commissioner of Labour at Bhavnagar, on 29.12.2003 Mr. Amit Chauhan, projecting himself to be a Union Leader, abused him and threatened him and demanded Rs. 5,000/-, or he would ruin the business etc. Under these circumstances, an F.I.R. was filed against Mr. Amit Chauhan for the offences punishable under Sections 384 and 504 Indian Penal Code. It is stated that the said case is pending in the Criminal Court. Further, some more details are given by the Superintendent of Police with regard to an offence registered with the Kamrej Police Station (Dist: Surat Rural), wherein there is reference of the connection of Mr. Chauhan and his brother with the illegal activities pertaining to Naxalism. In the said proceedings, Mr. Amit Chauhan at present residing at Bhavnagar is referred to as the original resident of Village: Chamtha-Sanjapur, Thana-Bachhwara, District Begusarai, State Bihar.
8.7 The normal modus operandi of Mr. Chauhan is that he would throw many stones and at least few would hurt the other side. In the event, the other side challenges the action before the higher Forum, he gives walk over to the other side and starts the game afresh in the field convenient to him. Reference in this regard can be made to the order passed by this Court on Special Civil Application No. 14442 of 2011 dated 28.09.2011, 13.10.2011 and then dated 02.05.2014.
8.8 On the face of the above material on record, this Court finds substantial force in the arguments of learned advocates and the say of the Authorities that, the affairs of the respondent Union and the conduct of its General Secretary Mr. Chauhan with whomsoever he is dealing with, generally is quite threatening, arm-twisting, browbeating and sometimes even abusive, be it a Government Officer, Advocate of the other side or even his own Advocate, the employer or his representative, or even the Presiding Officers.
8.9 The lack of bona fide on the part of Mr. Chauhan was also contended before the Labour Court, Bhavnagar by the petitioner of Special Civil Application No. 12230 of 2014, as is transpired from application dated 10.06.2013 more particularly para: 2 thereof wherein the orders of this Court dated 28.09.2011 and 13.10.2011 recorded on Special Civil Application No. 14442 of 2011 are referred to. The said petition ultimately came to be disposed of by this Court vide order dated 02.05.2014 inter alia observing about the lack of bona fide of the respondent Union as contained in para: 6 of the said order.
8.10 It also needs to be recorded that, even the registration of one of the Unions was cancelled by the Registrar of Trade Unions, however, because of some procedural irregularities, the same came to be set aside and thereafter no action is taken by the State Authorities even to complete those procedural irregularities. This has further boosted the courage of Mr. Chauhan. Though pendency of any criminal case against any individual cannot be a relevant factor, when it pertains to extortion of money in a labour dispute, the same cannot be brushed aside altogether.
8.11 So far the projection by Mr. Chauhan with different names is concerned, it is a matter of record that, in this group of petitions, Mr. Chauhan has filed affidavit-in-reply dated 30.09.2014 [in Special Civil Application No. 3846 of 2013] presenting himself as Amitkumar S/o Ramtansingh Chauhan. While, in Special Civil Application No. 14442 of 2011 Mr. Chauhan had filed affidavit dated 01.05.2014 on behalf of the respondent Mazdoor Adhikar Sangh projecting himself to be Ajaykumar Ramratansingh Chauhan. Again, in Special Civil Application No. 381 of 2014 which was filed by Mazdoor Adhikar Sangh, Mr. Chauhan had sworn the petition on 18.12.2013 as Ajay Chauhan, President. The said name is recorded after some correction, as is evident on page-15 of the said petition. Further, if the papers of Special Civil Application No. 15671 of 2012 are looked at, there also he had presented himself as Ajay Kumar Ramratansingh Chauhan, while filing affidavit as the petitioner on 23.08.2012.
9. In above factual background, this Court finds that, the functioning of the respondent Union and other Unions which are opened like a shop by Mr. Chauhan need closer scrutiny by the Competent Authority. If the registration, or the continuation of registration of such Unions is inconsistent with any of the provisions of law, such as Sections 4, 9A, 22 of the Trade Unions Act, 1926, and if it is so found by the Authorities, while verifying the details as may be provided in the periodical returns under Section 28 of the said Act, appropriate action can be taken by the Competent Authority. Even in the conciliation proceedings if the provisions of Section 12 of the Industrial Disputes Act, 1947 and the administrative instructions as contained in the Manual for Conciliation Officers are scrupulously followed, the misuse of the system can be checked to substantial extent. Neither respondent Union nor Mr. Chauhan can have any objection if the authorities are directed to inquire as to whether the Unions meet with the requirements of law or not.
10. In the facts and circumstances and for the reasons recorded above, the following order is passed.
10.1 These six petitions are allowed.
10.2.1 The common award passed by the Labour Court, Bhavnagar in Reference (LCB) Case Nos. 203, 204 and 205 of 2005 dated 28.12.2012, [the details of which are given in para: 2.1 above] is quashed and set aside.
10.2.2 The awards passed by the Labour Court, Bhavnagar in Reference (LCB) Case Nos. 123 and 124 of 2003 - both dated 28.03.2014, [the details of which are given in paras: 2.2 above] are quashed and set aside.
10.2.3 The order passed by the Labour Court, Bhavnagar dated 25.04.2014 below Exh. 3, in the proceedings of Reference (LCB) Demand No. 3 of 2012 [the details of which are given in paras: 2.3 above] is quashed and set aside, and the application filed by the proprietor-the petitioner of Special Civil Application No. 12230 of 2014, seeking permission to avail service of an Advocate in the proceedings of Reference (LCB) No. 3 of 2012, before the Labour Court, Bhavnagar, is allowed.
10.3 The Registrar of Trade Unions is directed: (i) to inquire and consider as to whether, the respondent Union i.e. The Majdoor Adhikhar Sangh, Bhavnagar and such other Unions fulfill the requirements and/or parameters, in accordance with law, to continue their registration, and (ii) to take appropriate action in accordance with law, in that regard.
10.4 The authorities of the Government are directed to instruct the concerned Conciliation Officers that, the conciliation proceedings in which Mr. Amit Chauhan [the respondent herein] appears, it would be first verified, as to whether he is authorised to espouse the cause of the concerned workman, in accordance with law.
10.5 The Registrar of the Labour Court, Bhavnagar is directed that (i) the cases wherein appearance is filed by Mr. Amit Chauhan on behalf of any workman, it would be first verified as to whether he fulfills all the legal parameters to represent the concerned workman in the said proceedings, and (ii) in the event, Mr. Amit Chauhan creates, or attempts to create any such situation, which may disturb the law and order in the Court premises, it shall be informed to the Superintendent of Police, Bhavnagar for doing needful, in accordance with law.
10.6 The Superintendent of Police, Bhavnagar is directed that, in the event any approach is made, by or on behalf of the Registrar of Labour Court, Bhavnagar, as directed above, appropriate actions shall be taken against Mr. Amit Chauhan, after due investigation, in accordance with law.
10.7 Rule is made absolute in each petition. No order as to costs.
