Gujarat High Court Case Information System
Print
SCA/30133/2007 11/ 11 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 30133 of 2007
=========================================================
THE
CHIEF OFFICER - Petitioner(s)
Versus
LATABEN
SAMAND & 1 - Respondent(s)
=========================================================
Appearance :
MR
DEEP D VYAS for Petitioner(s) : 1,
MR TR MISHRA for Respondent(s)
: 1,
NOTICE SERVED BY DS for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE S.R.BRAHMBHATT
Date
: 11/09/2008
ORAL
ORDER
Heard
learned advocates for the parties.
The
petitioner, Thangadh Nagarpalika, through its chief Officer has
approached this Court challenging award dated 3-4-2002 passed by the
Labour Court, Surendranagar in Reference (LCD) 23 of 2000 on the
basis of duly approved consent terms signed by all the competent
parties duly authorised to sign consent terms and also challenges
order dated 6-4-2006 passed by the Labour Court, Surendranagar,
rejecting review application for modification and or revoking award
dated 4-4-2002 which was passed upon consent terms.
The
facts, in brief, deserve to be set out in order to appreciate the
controversy in the present petition.
The
respondent No.1, lady, working in Nagarpalika at the relevant time,
had raised industrial dispute seeking reinstatement with full back
wages and claiming regularization in service which was referred to
the competent Court being Labour Court, Surendranagar, which came to
be numbered as Reference (LCD) 23 of 2000. In the said reference,
the parties passed up a pursis in the form of consent terms duly
signed by the respective parties as the compromise was arrived at by
the respective parties in Lok Adalat after due deliberations. The
pursis dated 3-4-2002 had been pased up, copy is produced on record
wherein it was agreed that in view of the General Body Resolution of
Nagarpalika dated 30-12-1999 as the work of respondent No.1 was
within the set up and as she was decided to be regularized, she was
to be made permanent with effect from 1-3-1999. It was also
mentioned therein that in that set up the post was sanctioned from
1-4-63 and respondent No.1 gave up claim for arrears and the period
from 1-3-90, i.e., date from which she was regularized as employee
till the date of compromise was to be treated as notional. Both the
parties sought award in terms of aforesaid compromise and consent
terms. Labour Court accordingly recorded the same and passed award
on 3-4-2002 which is impugned in the present petition.
The
respondent No.1, however, had not been given the benefits as
directed under the award. She had to move writ petition being
Special Civil Application No.2467 of 2005 for seeking appropriate
directions to the present petitioner for duly complying with the
awrd dated 3-4-2002. During hearing of that petition, present
petitioner who happened to be respondent in the aforesaid petition,
took up the stand that there was no vacant post of sewing teacher as
per the sanctioned set up to regularize the respondent and only one
sanctioned post of sewing teacher in Mahila Mandal run by Samad
Thangadh Nagarpalika had been occupied by one Ms. Kusumben
Andodariya since 1996, who is senior and more eligible to the
present respondent in the aforesaid petition. But, it was not
brought to the notice of Labour Court and they were not in a
position to regularize the services of respondent herein. This
Court (Coram : Mr. M.R.Shah, J.) with order dated 5-7-2007 disposed
of the matter making following observations :-
?SIt
is required to be noted that at present there is judgment and award
in favour of the petitioner and against the respondent, which is
not disturbed till today. The appropriate remedy for the
respondent would be either to file appropriate review application
before the Labour Court pointing out the aforesaid facts and to
recall the consent award. However, unless and until, the consent
award is disturbed or modified, the respondents are bound to comply
with the consent award. Under the circumstances, the respondents
are granted six weeks time to comply with the consent award in
question. However, during the said period, it will be open for the
respondent to move an appropriate application before the Labour
Court, Surendranagar, and to point out the facts which are stated
in the present petition. It will be open for the respondent to pray
for interim relief also. As and when such application is made, the
same shall be dealt with in accordance with law and on merits. If
no order during the said perod of six weeks is obtained, and the
consent judgment and award is not challenged and/or modified and/or
not stayed, the respondents are directed to comply with the consent
award passed by the Labour Court, Ahmedabad in Reference (LCD)
No.23 of 2000 dated 3-4-2002.??
The
petitioner preferred Review Application No.1 of 2005 before the
Labour Court, Surendranagar, pointing out the difficulties in
regularizing services as ordered and prayed for review and recalling
of the award. The learned Labour Court did not grant review
application and rejected the same with its order dated 26-4-2006.
The said order is also impugend in the present petition under Art.
227 of the Constitution of India.
Mr.
D.P.Vyas, learned counsel for the petitioner, submitted that the
review application has wrongly been rejected by the Labour Court
and, in fact, the award dated 3-4-2002 ought to have been revoked in
view of the fact that consent terms were dehors of the provisions of
law in respect of regularizing services of such employee and,
therefore, on that count also the consent terms cannot be said to be
in accordance with law, and therefore, the Review Application
deserves to be allowed. In the alternative, without prejudice to
the aforesaid contention, Mr. Vyas further submitted that
independent of the observations of the Court in review application
in the order made by Labour Court, the petitioners have right to
challenge the award dated 3-4-2002 before this Court. Mr. Vyas
further submitted that the set up on the date, does not envisage any
post which could be offered or the respondent can be regularalized.
Mr. Vyas further submitted that the post of sewing teacher in Mahila
Mandal has not been abolished, however on that post one employee,
viz., Ms. Kusumben Anondariya has been working and at his instance,
this Court with order dated 1-2-2008 allowed to be joined as party,
accordingly notice was issued to her and she has been served,
however she has not chosen to file any appearance.
Mr.
Vyas submitted that the post originally was adhoc post and,
therefore, there ought not to have been any consent in
regularization as it appears to be termed by the then Chief Officer
of Nagarpalika. At the same time, Mr. Vyas candidly and fairly
submits that no fraud or fradulent practice has been committed,
however it has been specifically averred in the petition that the
Chief Officer ought not to have signed the consent terms even if
there was Resolution of Nagarpalika. He submits that in view of
this, award dated 3-4-2002 deserves to be quashed. Nagarpalika is
running into losses and is unable to shoulder financial burden of
regularalization of the respondent. The length of service alone is
not the criteria taken into consideration in ordering
regularization. It is legnth of service of respondent No.1 which
ought not to have been regularlized at all.
Mr.
Mishra, learned advocate appearing for respondent No.1, vehemently
opposed this petition. Mr. Mishra submitted that it is not open to
Nagarpalika and Chief Officer to approach this Court under Art.227
of the Constitution of India by challenging consent award dated
3-4-2002. Mr. Mishtra submitted that Nagarpalika did not bother to
challenge the award dated 3-4-2002 on any count and simply sat tight
over the award without complying with the same. The conduct of
Nagarpalika and its Chief Officer before this Court deserves to be
viewed in its appropriate perspective especially when consent terms
which is now in the year 2007-2008, is said to be dehors the law,
have not been assailed in any fashion before any forum till
respondent No.1 filed the petition being Special Civil Application
No.2467 of 2005 in the year 2005 and for the first time in the year
2005 by way of contention on the part of respondent, those grounds
were raised. Even before this Court in the aforesaid petition,
respondent-present petitioner could not successfully maintain their
stand with regard to any illegality in consent terms. However, mere
reserving liberty to take appropriate action for rectifying so
called mistake also has not been culminated in their favour. When
they failed in review, they were duty bound to comply with the award
as even in order dated 5-7-2005 made in the petition by this Court
(Coram : Mr. M.R.Shah, J.) it is specifically directed that
Nagarpalika shall comply with the order and/or challenge the same
within stipulated time mentioned therein. The review application,
thereafter, was filed which came to be rejected on 6-4-2006. The
petitioner has not explained as to why the award was not challenged
nor has it been shown as to why it took 20 months time in
challenging the award. Mr. Mishra vehemently submitted that the
time taken in filing review application and decision thereon also
cannot be said to be the time spent which deserves to be given set
off in view of the decision of Hon’ble Apex Court in the case of
Kapra Mazdoor Ekta Union vs. Birla Cotton Spinning and Weaving Mills
Ltd., reported in (2005) 13 SCC 777. Thus, this Court granted
them liberty to take appropriate action, meaning thereby at least by
that time they could have challenged the award itself before the
High Court and time taken in review ought not to have been spent
which, therefore, is the time which shall not be taken into
consideration for giving set off. Mr. Mishtra further submitted the
scope of Art.227 of the Constitution of India, does not permit
petitioner to take up the contentions which ought to have been taken
before the concerned Court when reference was being decided. At the
same time, Mr. Mishtra submitted that the post as it is clearly
mentioned in the consent terms, was sanctioned way back in the year
1963 and now in this petition also the petitioner has not come out
with clear facts as to how respondent No.1 could not regularized.
In view of this, it is submitted that the petition deserves to be
dismissed with costs.
This
Court has heard learned advocates for the parties at length. Before
considering the rival contentions of the advocates, the following
undisputed facts deserve to be stated : 1) The respondent No.1
had to raise industrial dispute in respect of her termination and
for seeking relief of reinstatement and back wages. The competent
appropriate Government, i.e., State Government in this case through
its competent officer referred the matter to the competent
authority, i.e., Labour Court for its adjudication in accordance
with. This dispute came to be numbered as Reference (LCD) 23 of
2000.
2)
The reference was before the competent Court and both the parties
were absolutely at liberty to lead requisite evidence and submit
their respective stand and lead further evidence in support
thereof.
3)
General Body of Nagarpalika has passed Resolution No.15 referred
in consent terms in the year 1990 itself, for according benefits
of regularlization to respondent No.1 wherein it is mentioned that
the post in Nagarpalika existed since 1963. The competent officer
could have passed up appropriate action and signed consent terms
being Chief Officer, who has signed consent terms along with his
seal which was nothing but reflection of general body resolution.
Thus, general body and Chief Officer both after due deliberation
decided to accord benefits of regularization from the appropriate
date as respondent No.1 had given up her claim for arrears.
Learned Labour Court has merely passed an award as per consent
terms as can be evidently seen from the award as well as consent
terms placed on record. It is reiterated at the costs of
repetition that those consent terms speak availability of the post
since the year 1963 and nowhere it is stated as to what was the
handicap in regularizing the respondent No.1.
4)
The award is dated 3-4-2002 and respondent No.1, according to that
award and consent terms, was to get the benefit of
regularalization since 1-3-99 and actual benefit from 3-4-2002,
i.e., the date of compromise and consent terms of award.
5)
Nagarpalika-petitioner did not do anything except reinstating the
petitioner. They did not grant any benefits as envisaged under the
consent terms and award impugned in this petition, nor did
Nagarpalika challenge the award before any forum nor had it filed
any corrective petition or application before any forum, if at all
it was not permissible as it is sought to be made out in this
petition.
6)
Nagarpalika not only did not challenge the award in any forum but
did not comply with the same and took up stand before this Court
in their capacity of respondent in Special Civil Application
No.2467 of 2005 which was filed by respondent No.1 seeking
compliance with the order. Even during hearing of this petition,
Nagarpalika could not convince this Court for taking any contrary
view except obtaining some time, i.e., six weeks time for either
filing corrective petition, i.e., Review Applciation or for
complying or challenging the award. The said order dated 5-7-2005
is containing direction also to the petitioner to comply with the
order and/or take up appropriate proceeding stipulated within time
mentioned therein.
7)
The petitioner filed Review Application as stated above and the
same came to be dismissed or rejected on 26-4-2006. Thereafter,
for the reasons best known to Nagarpalika-petitioner, no steps
were taken either to comply with the award or to challenge the
award before appropriate forum and the matter kept on pending and
respondent No.1 did not get any fruits of her litigation.
Ultimately on 5-12-2007 after period of 20 months this petition
came to be filed challenging the award dated 3-4-2002 as well as
the order in Review Application dated 26-4-2006.
Against
this back drop of events, the rival contentions of learned Counsels
need to be examined.
This
Court is constained to record that even in the petition, the
petitioner have not shown as to under which provision of law,
Nagarpalika was not empowered to make appropriate resolution
awarding benefits nor has it been pointed out that under which
provision of law, consent terms can be said to be contrary to the
provision of law. One may appreciate that there can be any
requirement of obtaining any sanction or approval from concerned
authorities under which Nagarpalika is functioning. The petitioner
merely under the submission of consent being contrary to law, cannot
be permitted to defeat the award and respondent No.1 has right to
reap fruits thereunder. Collector’s order is pressed into service
for defeating the right of respondent No.1 to take benefits of
award, is absolutely misplaced, misconceived and deserves to be
rejected as from the face of it, it appears that Collector has not
taken into consideration the correct position of law nor has he
taken into consideration the observations made by this Court in
Special Civil Application No.2467 of 2005 in its order dated
5-7-2005. Therefore, reliance upon the Collector’s order is of no
avail to the present petition. The petitioner have chosen not join
the Collector or State as party respondent in the present
proceeding. Therefore, it would not be appropriate for ths Court to
ascertain anything from the State in this behalf. Suffice it to say
that the petitioner failed to point out as to how consent terms were
contrary to law and not capable of being complied with. The Court
under Art.227 of the Constitution of India, has its well defined
limitation wherein issues with regard to sanction of post,
non-sanction of post, availability of vacancy, qualification of
candidates are not to be looked into when those things have not been
pleaded or adjudicated upon by the Court of first instance whose
orders are under challenge before this Court. After the judgment was
over, guidelines dated 3-8-2004 is pressed into service. Suffice it
to say, that even if guidelines did not permit any consent terms,
guidelines are issued on 3-8-2004 and naturally, therefore, it
cannot have any applicability when consent terms were filed.
Therefore, these guidelines are of no use whatsoever. Suffice it to
say that the petition being devoid of merits, deserves to be
dismissed and accordingly, it is dismissed. However, there shall be
no order as to costs.
(S.R.BRAHMBHATT,
J.)
vijay*
Top