SCA/13041/2005 9/ 9 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 13041 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE K.M.THAKER ========================================================= 1 Whether Reporters of Local Papers may be allowed to see the judgment ? 2 To be referred to the Reporter or not ? 3 Whether their Lordships wish to see the fair copy of the judgment ? 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? 5 Whether it is to be circulated to civil judge ? ========================================================= ABAD DAIRY (GDDC) KARMACHARI MANDAL - Petitioner(s) Versus GUJARAT DAIRY DEVELOPMENT CORPORATION & 6 - Respondent(s) ========================================================= Appearance : MR NR SHAHANI for Petitioner(s) : 1, MR KM PATEL, SR. ADVOCATE WITH MR. JM PATEL FOR MR AK PATEL for Respondent(s) : 1, DS AFF.NOT FILED (R) for Respondent(s) : 2 ý 4 & 7. MR KD PANDYA, ASST. GOVERNMENT PLEADER for Respondent(s) : 5 - 6, ========================================================= CORAM : HONOURABLE MR.JUSTICE K.M.THAKER Date : 14/08/2008 ORAL JUDGMENT
In
this petition, the petitioner has challenged the order dated
26.7.2002 passed by the specified authority / labour commissioner in
permission application No.7 of 2002 whereby, the said specified
authority granted permission in favour of the respondent No.1 herein
for closure of its unit viz. Abad Dairy (hereinafter referred to as
ýSthe dairyýý). The petitioner union has also challenged award
dated 28.1.2005 passed by the Industrial Tribunal, Ahmedabad whereby,
the Industrial Tribunal rejected the reference and confirmed the
order granting permission for closure of the dairy. The petitioner
has also prayed that during the pendency of the petition, the
concerned persons may be offered the benefit of VRS based on the pay
scales of 5th Pay Commission in the same manner as was
offered to other employees.
The
facts in the background of the controversy involved in present
petition are that, the dairy was, as per its claim, running into
heavy loss due to circumstances beyond its control and there were
huge accumulated losses and as a cumulative result of the huge
accumulated loss and circumstances beyond its control, the dairy had
become economically inviable. Thus, upon being compelled by such
circumstances, the respondent No.1 corporation made an application
dated 29.5.2002 under section 25(0)(1), praying for prior permission
to close down the dairy. The said application of the respondent
corporation was numbered as permission application No. 7 of 2002.
After hearing the respondent No.1 corporation and the representative
of the union representing the workmen, the specified authority
granted permission by its order dated 26.7.2002 for closure of said
dairy. The petitioner union was aggrieved by the said order granting
permission and that therefore, sought reference against the said
order dated 26.7.2002. The said dispute was referred and culminated
into reference (IT) No.254 of 2002. After detailed hearing and upon
examination of voluminous record, the Industrial Tribunal rejected
the reference by its award dated 18.1.2005 and confirmed the order
dated 26.7.2002 passed by the specified authority. Consequently, the
permission granted by the specified authority by its order dated
26.7.2002 became final. Aggrieved by the said two orders, the
petitioner union is before this court.
Initially,
the petitioner union, in the subject petition, challenged only the
aforesaid two orders and by way of alternative relief, also prayed
that the order granting permission may be modified so as to
incorporate conditions like VRS or pay scale of 5th Pay
Commission, etc. and then during pendency of this petition, also
requested for certain amendments in the petition. The request was
granted. Since then various orders have been passed from time to time
giving diverse directions to the contesting parties.
Essentially
and in substance, present petition is against the said order dated
26.7.2002 granting permission for closure of Abad Dairy and the award
dated 28.1.2005 rejecting the reference and confirming the said order
dated 26.7.2002. It is not in dispute that the actual closure of the
dairy has become final. It has also came on record that at certain
point of time the dairy was declared sick unit and the attempts for
its revival during pendency of the proceedings before the BIFR did
not yield any result.
In
this petition, which essentially and in substance challenges the
aforesaid two orders dated 26.7.2002 and 28.1.2005, it would neither
be possible nor practicable at this stage, for this court, to examine
the alternative relief prayed for by the petitioner union namely, the
relief for the benefit of VRS based on the pay scale of 5th
Pay Commission. Even otherwise, the decision to grant or not to grant
such benefit to the employees who have at the relevant time not opted
for VRS is a matter of policy. The petitioner union being, conscious
of the aforesaid difficult position with reference to its said
alternative prayer, today submitted through its learned counsel that
the petitioner union, on behalf of its members i.e. concerned
workmen, was willing to make representation to the concerned and
competent authority for favourable consideration of the request for
grant of VRS with pay scale of 5th Pay Commission. On
behalf of the petitioner union, it was submitted that the union has
challenged the said two orders and in alternative, has also
challenged the omission on the part of the employer to grant VRS
based on pay scale of 5th Pay Commission.
Mr.
K.M.Patel, learned Senior Counsel appears with Mr. J.M.Patel for the
respondent corporation. He submitted that it is a matter of
petitioner’s choice to make representation for the said relief and in
present circumstances, it would be for the State Government to take
into account the said request / representation and the respondent
corporation, pursuant to the closure of the dairy does not have any
substantial say in the matter so far as such request is concerned,
more particularly, since the concerned persons had not opted for or
accepted the said benefit of VRS at the relevant point of time. Be
that as it may, the fact of the matter is that today on behalf of the
petitioner union it is submitted that though originally the
petitioner union challenged the aforesaid two orders, at the
beginning of the final hearing, the union was very enthusiastic about
reopening the dairy, it is now desirous to make representation on
behalf of and in the interest of the concerned employees to the
concerned and competent respondent authority for grant of the benefit
of VRS based on the pay scales of 5th Pay Commission. Mr.
Sahani, on behalf of the petitioner union, clarified that the
petitioner union is not claiming the benefit of pay scale of 5th
Pay Commission for the period of service tenure but is requesting the
benefit of the pay scale of 5th Pay Commission only for
the purpose of VRS i.e. for calculating the amount payable towards
VRS. It is submitted on behalf of the petitioner union that for the
aforesaid purpose, the petitioner desires to withdraw this petition
with a view to making representation to the concerned and competent
authority who is expected to consider the same sympathetically. Mr.
Patel, Senior Advocate with Mr. J.M.Patel submitted that the
respondent corporation cannot have, and does not have, any objection
if the petitioner union seeks to withdraw the petition for making
representation to the concerned and competent authority. He, however,
clarified that it would not be within the authority of the
corporation to take any such decision and the said aspect would
squarely fall within the authority of the State Government.
Obviously, the petitioner would keep the aforesaid aspect in focus
while making proposed request / representation.
In
view of the aforesaid request of the petitioner union, through its
learned advocate Mr. Sahani for permission to withdraw the petition
with a request for making representation for the aforesaid benefit to
the concerned and competent authority and in view of the fact that
the respondents have no objection if the petition is permitted to be
withdrawn for the aforesaid purpose, the permission as requested for
by the petitioner union is granted. The petition stands disposed of
as withdrawn. It would be open for the petitioner union to make
representation to grant benefit of VRS based on the pay scales of 5th
Pay Commission. Mr. Sahani submitted that the petitioner union would
make such representation within a period of 4 weeks from 25th
August, 2008 i.e. on or before 26th September, 2008. It
is hoped that if and when such representation is made, the concerned
and competent authority will consider the same and take appropriate
decision preferably within 3 months from the date of receipt of
representation. Mr. Sahani also clarified that the petitioner would
confine the proposed representation only to claim the aforesaid
benefit.
Since
the petitioner has requested for permission to withdraw the petition,
present petition is, with the aforesaid observations and
clarification, disposed of, without going into the merits, as
withdrawn. Rule discharged. Ad-interim relief, if any, stands vacated
forthwith. No order as to costs.
kdc [K.M.Thaker, J.]