Gujarat High Court Case Information System
Print
SCA/9385/2008 8/ 8 JUDGMENT
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL
CIVIL APPLICATION No. 9385 of 2008
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 the civil judge ?
=========================================================
AHMEDABAD
KAISER-I-HIND MILLS CO. LTD. - Petitioner(s)
Versus
DHANESH
HARIVADAN DESAI - Respondent(s)
=========================================================
Appearance
:
MR
DIPAK R DAVE for
Petitioner(s) : 1,
None for Respondent(s) :
1,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE K.M.THAKER
Date
: 05/08/2008
ORAL
JUDGMENT
1. The
petitioner – a Public Limited Company has preferred present petition
against the judgment and order dated 1.5.2002 passed by the learned
Labour Court in T Application No.137 of 1998. The petitioner has also
challenged an order dated 2.12.2003 passed by the learned Industrial
Court in Appeal (IC) No.49 of 2002 by above referred order dated
2.12.2003, the learned Industrial Court directed the present
petitioner to reinstate the respondent of present petition with 50%
back-wages on his original post in the same Department and with
continuity of services. Considering the submissions, RULE. At
the joint request and with the consent of both the parties, the
petition is taken up for final hearing today.
2. Mr.
Dave, learned advocate appears for the petitioner and Mr. Mankad,
learned advocate appears on advance copy.
3. It
is the case of the petitioner that the respondent was working as a
probationer and during the probation period, his services were
terminated. The respondent had, before termination put three months
services and aggrieved by the action of the petitioner – Company, he
approached the learned Labour Court by way of above referred
application No.137 of 1998, wherein the impugned order dated 1.5.2002
came to be passed. Aggrieved by the said order, the Company as well
as the respondent preferred appeals. Subsequently, after hearing both
the sides, the learned Industrial Court passed impugned order dated
2.12.2003. As a result of which, the petitioner is required to
reinstate the respondent, the petitioner is also required to pay 50%
back-wages.
4. It
is the case of the petitioner that in the interregnum, operations of
the petitioner have been totally closed and almost all assets of the
petitioner Company have been disposed of and the employees have been,
under settlement with representative Union, relieved from the
service. Under the circumstances, it is practical impossibility for
the petitioner to comply with the impugned orders.
5. It
is relevant to note that the respondent has, on the other hand
preferred petition being Special Civil Application No.19921 of 2005
and has challenged the order passed by the learned Industrial Court
to the extent it denies the balance 50% back-wages and he has prayed
that he may be granted 100% wages. During the pendency of the
aforesaid Special Civil Application No.19921 of 2005, prolonged
deliberation for final settlement, as per the submissions of both the
sides are said to have taken place and though it was agreed, in
principle, to settle the dispute in monetary terms, since
reinstatement was an impossibility, a final settlement could not be
arrived at between the parties on account of differences regarding
the amount for final settlement.
6. The
petitioner has come out with a case that in view of on-going process
of setting the dispute between the parties that the petitioner did
not prefer the petition at an earlier date and the petitioner was
hopeful that the dispute would be settled. However, the petitioner is
constrained to prefer the present petition after almost five years
because the settlement could not be finalized.
7. The
time time consumed in negotiation would not justify the delay in
preferring the petition and that is not a good reason to interfere
with the judgment impugned in the petition, after a lapse of almost 5
years. Further there are two concurrent decisions against the
petitioner.
8. While
the said aspects were being further considered during the submission
of the petitioner, further negotiation between the parties took place
and today Mr. Dave, learned advocate and Mr. Mankad, learned advocate
jointly submitted that the parties have arrived at settlement and
both petitions can be disposed of in view of the agreement between
the parties.
9. Mr.
Dave, learned advocate submitted that the petitioner has agreed to
pay lumpsum amount of Rs.1 Lac towards full and final settlement of
all claim of the respondent. Mr. Mankad, learned advocate submitted
that respondent has agreed to accept the said amount as full and
final settlement of his claim and dispute. It is also agreed between
the parties that upon payment of the said amount of Rs. 1 Lac for
full and final settlement all the claims of the respondent shall
stand settled and if there is any other claim or dispute, the claim
shall be deemed to have been settled and waived by the respondent.
10. Mr.
Dave, learned advocate submitted that in view of the financial
difficulty of the petitioner, the petitioner would need some time to
make the payment. Mr. Mankad, learned advocate on behalf of the
respondent has accepted the said suggestion and it is agreed and
settled between the parties that initially the petitioner would pay
an amount of Rs.25,000/- on or before 20.8.2008 and balance payment
of Rs.75,000/- will be cleared on or before 31.8.2008. Mr. Mankand,
learned advocate on behalf of the respondent has accepted the said
arrangement.
11. In
the aforesaid view of the matter, the petitioner is directed to pay
an amount of Rs.25,000/- to the respondent as full and final
settlement of all claims and disputes of respondent on or before
20.8.2008. The petitioner is further directed to make the payment of
Rs.75,000/- on or before 31.12.2008.
12. The
petitioner is directed to file an undertaking through its Director
with this Court on or before 12.8.2008, declaring and undertaking
that the aforesaid agreement shall be honoured and complied with. Mr.
Mankad, learned advocate made request that the petitioner may be
directed to make the payment through Account Payee Cheque. The
petitioner shall make the payment accordingly. Mr. Mankand submitted
that the respondent is also present present in the Court and he has
made the statements on his instruction. Mr. Dave also submitted that
the Director of the petitioner Company is present in the court and he
has made the statement as per his instructions.
13. In
view of the aforesaid agreement between the parties, the order
impugned in present petition stands modified accordingly i.e. in
terms of the said settlement and upon payment as aforesaid, the said
judgment and order would have been complied in this charge.
14. Mr.
Dave and Mr. Mankand, learned advocates jointly request to dispose of
the petition in terms of the said settlement. Accordingly, Special
Civil Application No.19921 of 2005 is disposed of in terms of
settlement.
(K.M.THAKER,
J.)
ynvyas
Top