{"id":203500,"date":"2008-09-11T00:00:00","date_gmt":"2008-09-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-vs-lataben-on-11-september-2008"},"modified":"2018-10-23T10:10:23","modified_gmt":"2018-10-23T04:40:23","slug":"the-vs-lataben-on-11-september-2008","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-vs-lataben-on-11-september-2008","title":{"rendered":"The vs Lataben on 11 September, 2008"},"content":{"rendered":"
Gujarat High Court<\/div>\n
The vs Lataben on 11 September, 2008<\/div>\n
Author: S.R.Brahmbhatt,&Nbsp;<\/div>\n
   Gujarat High Court Case Information System \n\n  \n  \n    \n\n \n \n    \t      \n         \n\t    \n\t\t   Print\n\t\t\t\t          \n\n  \n\n\n\t \n\t \n\t \n\t \n\t \n\t \n\t \n\t\n\n\n \n\n\n\t \n\nSCA\/30133\/2007\t 11\/ 11\tORDER \n \n \n\n\t\n\n \n\nIN\nTHE HIGH COURT OF GUJARAT AT AHMEDABAD\n \n\n \n\n\n \n\nSPECIAL\nCIVIL APPLICATION No. 30133 of 2007\n \n\n \n \n=========================================================\n\n\n \n\nTHE\nCHIEF OFFICER - Petitioner(s)\n \n\nVersus\n \n\nLATABEN\nSAMAND & 1 - Respondent(s)\n \n\n=========================================================\n \nAppearance : \nMR\nDEEP D VYAS for Petitioner(s) : 1, \nMR TR MISHRA for Respondent(s)\n: 1, \nNOTICE SERVED BY DS for Respondent(s) :\n2, \n========================================================= \n\n \n\t  \n\t \n\t  \n\t\t \n\t\t\t \n\nCORAM\n\t\t\t: \n\t\t\t\n\t\t\n\t\t \n\t\t\t \n\nHONOURABLE\n\t\t\tMR.JUSTICE S.R.BRAHMBHATT\n\t\t\n\t\n\n \n\nDate\n: 11\/09\/2008 \n\n \n\n \nORAL\nORDER<\/pre>\n
Heard
\n\tlearned advocates for the parties.\n<\/p>\n
The
\n\tpetitioner, Thangadh Nagarpalika, through its chief Officer has
\n\tapproached this Court challenging award dated 3-4-2002 passed by the
\n\tLabour Court, Surendranagar in Reference (LCD) 23 of 2000 on the
\n\tbasis of duly approved consent terms signed by all the competent
\n\tparties duly authorised to sign consent terms and also challenges
\n\torder dated 6-4-2006 passed by the Labour Court, Surendranagar,
\n\trejecting review application for modification and or revoking award
\n\tdated 4-4-2002 which was passed upon consent terms.\n<\/p>\n
The
\n\tfacts, in brief, deserve to be set out in order to appreciate the
\n\tcontroversy in the present petition.\n<\/p>\n
The
\n\trespondent No.1, lady, working in Nagarpalika at the relevant time,
\n\thad raised industrial dispute seeking reinstatement with full back
\n\twages and claiming regularization in service which was referred to
\n\tthe competent Court being Labour Court, Surendranagar, which came to
\n\tbe numbered as Reference (LCD) 23 of 2000.  In the said reference,
\n\tthe parties passed up a pursis in the form of consent terms duly
\n\tsigned by the respective parties as the compromise was arrived at by
\n\tthe respective parties in Lok Adalat after due deliberations.  The
\n\tpursis dated 3-4-2002 had been pased up, copy is produced on record
\n\twherein it was agreed that in view of the General Body Resolution of
\n\tNagarpalika dated 30-12-1999 as the work of respondent No.1 was
\n\twithin the set up and as she was decided to be regularized, she was
\n\tto be made permanent  with effect from 1-3-1999. It was also
\n\tmentioned therein that in that set up the post was sanctioned from
\n\t1-4-63 and respondent No.1 gave up claim for arrears and the period
\n\tfrom 1-3-90, i.e., date from which she was regularized as employee
\n\ttill the date of compromise was to be treated as notional.  Both the
\n\tparties sought award in terms of aforesaid compromise and consent
\n\tterms.  Labour Court accordingly recorded the same and passed award
\n\ton 3-4-2002 which is impugned in the present petition.\n<\/p>\n
The
\n\trespondent No.1, however, had not been given the benefits as
\n\tdirected under the award.  She had to move writ petition being
\n\tSpecial Civil Application No.2467 of 2005 for seeking appropriate
\n\tdirections to the present petitioner for duly complying with the
\n\tawrd dated 3-4-2002.  During hearing of that petition, present
\n\tpetitioner who happened to be respondent in the aforesaid petition,
\n\ttook up the stand that there was no vacant post of sewing teacher as
\n\tper the sanctioned set up to regularize the respondent and only one
\n\tsanctioned post of sewing teacher in Mahila Mandal run by Samad
\n\tThangadh Nagarpalika had been occupied by one Ms. Kusumben
\n\tAndodariya since 1996, who is senior and more eligible to the
\n\tpresent respondent in the aforesaid petition.  But, it was not
\n\tbrought to the notice of Labour Court and they were not in a
\n\tposition to regularize the services of respondent herein.  This
\n\tCourt (Coram : Mr. M.R.Shah, J.) with order dated 5-7-2007 disposed
\n\tof the matter making following observations   :-\n<\/p>\n
?SIt
\n\t\tis required to be noted that at present there is judgment and award
\n\t\tin favour of the petitioner and against the respondent, which is
\n\t\tnot disturbed till today.  The appropriate remedy for the
\n\t\trespondent would be either to file appropriate review application
\n\t\tbefore the Labour Court pointing out the aforesaid facts and to
\n\t\trecall the consent award.  However, unless and until, the consent
\n\t\taward is disturbed or modified, the respondents are bound to comply
\n\t\twith the consent award.  Under the circumstances, the respondents
\n\t\tare granted six weeks time to comply with the consent award in
\n\t\tquestion. However, during the said period, it will be open for the
\n\t\trespondent to move an appropriate application before the Labour
\n\t\tCourt, Surendranagar, and to point out the facts which are stated
\n\t\tin the present petition. It will be open for the respondent to pray
\n\t\tfor interim relief also. As and when such application is made, the
\n\t\tsame shall be dealt with in accordance with law and on merits.  If
\n\t\tno order during the said perod of six weeks is obtained, and the
\n\t\tconsent judgment and award is not challenged and\/or modified and\/or
\n\t\tnot stayed, the respondents are directed to comply with the consent
\n\t\taward passed by the Labour Court, Ahmedabad in Reference (LCD)
\n\t\tNo.23 of 2000 dated 3-4-2002.??\n<\/p>\n
The
\n\tpetitioner preferred Review Application No.1 of 2005 before the
\n\tLabour Court, Surendranagar, pointing out the difficulties in
\n\tregularizing services as ordered and prayed for review and recalling
\n\tof the award. The learned Labour Court did not grant review
\n\tapplication and rejected the same with its order dated 26-4-2006.
\n\tThe said order is also impugend in the present petition under Art.
\n\t227 of the Constitution of India.\n<\/p>\n
Mr.\n<\/p>\n
\tD.P.Vyas, learned counsel for the petitioner, submitted that the
\n\treview application has wrongly been rejected by the Labour Court
\n\tand, in fact, the award dated 3-4-2002 ought to have been revoked in
\n\tview of the fact that consent terms were dehors of the provisions of
\n\tlaw in respect of regularizing services of such employee and,
\n\ttherefore, on that count also the consent terms cannot be said to be
\n\tin accordance with law, and therefore, the Review Application
\n\tdeserves to be allowed.  In the alternative, without prejudice to
\n\tthe aforesaid contention, Mr. Vyas further submitted that
\n\tindependent of the observations of the Court in review application
\n\tin the order made by Labour Court, the petitioners have right to
\n\tchallenge the award dated 3-4-2002 before this Court.  Mr. Vyas
\n\tfurther submitted that the set up on the date, does not envisage any
\n\tpost which could be offered or the respondent can be regularalized.
\n\tMr. Vyas further submitted that the post of sewing teacher in Mahila
\n\tMandal has not been abolished, however on that post one employee,
\n\tviz., Ms. Kusumben Anondariya has been working and at his instance,
\n\tthis Court with order dated 1-2-2008 allowed to be joined as party,
\n\taccordingly notice was issued to her and she has been served,
\n\thowever she has not chosen to file any appearance.\n<\/p>\n
Mr.\n<\/p>\n
\tVyas submitted that the post originally was adhoc post and,
\n\ttherefore, there ought not to have been any consent in
\n\tregularization as it appears to be termed by the then Chief Officer
\n\tof Nagarpalika.  At the same time, Mr. Vyas candidly and fairly
\n\tsubmits that no fraud or fradulent practice has been committed,
\n\thowever it has been specifically averred in the petition that the
\n\tChief Officer ought not to have signed the consent terms even if
\n\tthere was Resolution of Nagarpalika.  He submits that in view of
\n\tthis, award dated 3-4-2002 deserves to be quashed. Nagarpalika is
\n\trunning into losses and is unable to shoulder financial burden of
\n\tregularalization of the respondent. The length of service alone is
\n\tnot the criteria taken into consideration in ordering
\n\tregularization.  It is legnth of service of respondent No.1 which
\n\tought not to have been regularlized at all.\n<\/p>\n
Mr.\n<\/p>\n
\tMishra, learned advocate appearing for respondent No.1, vehemently
\n\topposed this petition. Mr. Mishra submitted that it is not open to
\n\tNagarpalika and Chief Officer to approach this Court under Art.227
\n\tof the Constitution of India by challenging consent award dated
\n\t3-4-2002.  Mr. Mishtra submitted that Nagarpalika did not bother to
\n\tchallenge the award dated 3-4-2002 on any count and simply sat tight
\n\tover the award without complying with the same.  The conduct of
\n\tNagarpalika and its Chief Officer before this Court deserves to be
\n\tviewed in its appropriate perspective especially when consent terms
\n\twhich is now in the year 2007-2008, is said to be dehors the law,
\n\thave not been  assailed in any fashion before any forum till
\n\trespondent No.1 filed the petition being Special Civil Application
\n\tNo.2467 of 2005 in the year 2005 and for the first time in the year
\n\t2005 by way of contention on the part of respondent, those grounds
\n\twere raised.  Even before this Court in the aforesaid petition,
\n\trespondent-present petitioner could not successfully maintain their
\n\tstand with regard to any illegality in consent terms.  However, mere
\n\treserving liberty to take appropriate action for rectifying so
\n\tcalled mistake also has not been culminated in their favour. When
\n\tthey failed in review, they were duty bound to comply with the award
\n\tas even in order dated 5-7-2005 made in the petition by this Court
\n\t(Coram : Mr. M.R.Shah, J.) it is specifically directed that
\n\tNagarpalika shall comply with the order and\/or challenge the same
\n\twithin stipulated time mentioned therein.  The review application,
\n\tthereafter, was filed which came to be rejected on 6-4-2006.  The
\n\tpetitioner has not explained as to why the award was not challenged
\n\tnor has it been shown as to why it took 20 months time in
\n\tchallenging the award.  Mr. Mishra vehemently submitted that the
\n\ttime taken in filing review application and decision thereon also
\n\tcannot be said to be the time spent which deserves to be given set
\n\toff in view of the decision of Hon’ble Apex Court in the case of
\n\tKapra Mazdoor Ekta Union vs. Birla Cotton Spinning and Weaving Mills
\n\tLtd.,<\/a> reported in (2005) 13 SCC 777.    Thus, this Court granted
\n\tthem liberty to take appropriate action, meaning thereby at least by
\n\tthat time they could have challenged the award itself before the
\n\tHigh Court and time taken in review ought not to have been spent
\n\twhich, therefore, is the time which shall not be taken into
\n\tconsideration for giving set off.  Mr. Mishtra further submitted the
\n\tscope of Art.227 of the Constitution of India, does not permit
\n\tpetitioner to take up the contentions which ought to have been taken
\n\tbefore the concerned Court when reference was being decided.  At the
\n\tsame time, Mr. Mishtra submitted that the post as it is clearly
\n\tmentioned in the consent terms, was sanctioned way back in the year
\n\t1963 and now in this petition also the petitioner has not come out
\n\twith clear facts as to how respondent No.1 could not regularized.
\n\tIn view of this, it is submitted that the petition deserves to be
\n\tdismissed with costs.\n<\/p>\n
This
\n\tCourt has heard learned advocates for the parties at length.  Before
\n\tconsidering the rival contentions of the advocates, the following
\n\tundisputed facts deserve to be stated   :\t\t\t1) The respondent No.1
\n\thad to raise industrial \tdispute in respect of her termination and
\n\tfor \tseeking relief of reinstatement and back wages.  \tThe competent
\n\tappropriate Government, i.e., \tState Government in this case through
\n\tits \tcompetent officer referred the matter to the \tcompetent
\n\tauthority, i.e., Labour Court for its \tadjudication in accordance
\n\twith. This dispute \tcame to be numbered as Reference (LCD) 23 of
\n\t\t2000.\n<\/p>\n
2)
\n\t\t\tThe reference was before the competent Court and both the parties
\n\t\t\twere absolutely at liberty to lead requisite evidence and submit
\n\t\t\ttheir respective stand and lead further evidence in support
\n\t\t\tthereof.\n<\/p>\n
3)
\n\t\t\tGeneral Body of Nagarpalika has passed Resolution No.15 referred
\n\t\t\tin consent terms in the year 1990 itself, for according benefits
\n\t\t\tof regularlization to respondent No.1 wherein it is mentioned that
\n\t\t\tthe post in Nagarpalika existed since 1963.  The competent officer
\n\t\t\tcould have passed up appropriate action and signed consent terms
\n\t\t\tbeing Chief Officer, who has signed consent terms along with his
\n\t\t\tseal which was nothing but reflection of general body resolution.
\n\t\t\tThus, general body and Chief Officer both after due deliberation
\n\t\t\tdecided to accord benefits of regularization from the appropriate
\n\t\t\tdate as respondent No.1 had given up her claim for arrears.
\n\t\t\tLearned Labour Court has merely passed an award as per consent
\n\t\t\tterms as can be evidently seen from the award as well as consent
\n\t\t\tterms placed on record.  It is reiterated at the costs of
\n\t\t\trepetition that those consent terms speak availability of the post
\n\t\t\tsince the year 1963 and nowhere it is stated as to what was the
\n\t\t\thandicap in regularizing the respondent No.1.\n<\/p>\n
4)
\n\t\t\tThe award is dated 3-4-2002 and respondent No.1, according to that
\n\t\t\taward and consent terms, was to get the benefit of
\n\t\t\tregularalization since 1-3-99 and actual benefit from 3-4-2002,
\n\t\t\ti.e., the date of compromise and consent terms of award.\n<\/p>\n
5)
\n\t\t\tNagarpalika-petitioner did not do anything except reinstating the
\n\t\t\tpetitioner. They did not grant any benefits as envisaged under the
\n\t\t\tconsent terms and award impugned in this petition, nor did
\n\t\t\tNagarpalika challenge the award before any forum nor had it filed
\n\t\t\tany corrective petition or application before any forum, if at all
\n\t\t\tit was not permissible as it is sought to be made out in this
\n\t\t\tpetition.\n<\/p>\n
6)
\n\t\t\tNagarpalika not only did not challenge the award in any forum but
\n\t\t\tdid not comply with the same and took up stand before this Court
\n\t\t\tin their capacity of respondent in Special Civil Application
\n\t\t\tNo.2467 of 2005 which was filed by respondent No.1 seeking
\n\t\t\tcompliance with the order.  Even during hearing of this petition,
\n\t\t\tNagarpalika could not convince this Court for taking any contrary
\n\t\t\tview except obtaining some time, i.e., six weeks time for either
\n\t\t\tfiling corrective petition, i.e., Review Applciation or for
\n\t\t\tcomplying or challenging the award.  The said order dated 5-7-2005
\n\t\t\tis containing direction also to the petitioner to comply with the
\n\t\t\torder and\/or take up appropriate proceeding stipulated within time
\n\t\t\tmentioned therein.\n<\/p>\n
7)
\n\t\t\tThe petitioner filed Review Application as stated above and the
\n\t\t\tsame came to be dismissed or rejected on 26-4-2006.  Thereafter,
\n\t\t\tfor the reasons best known to Nagarpalika-petitioner, no steps
\n\t\t\twere taken either to comply with the award or to challenge the
\n\t\t\taward before appropriate forum and the matter kept on pending and
\n\t\t\trespondent No.1 did not get any fruits of her litigation.
\n\t\t\tUltimately on 5-12-2007 after period of 20 months this petition
\n\t\t\tcame to be filed challenging the award dated 3-4-2002 as well as
\n\t\t\tthe order in Review Application dated 26-4-2006.\n<\/p>\n
Against
\n\tthis back drop of events, the rival contentions of learned Counsels
\n\tneed to be examined.\n<\/p>\n
This
\n\tCourt is constained to record that even in the petition, the
\n\tpetitioner have not shown as to under which provision of law,
\n\tNagarpalika was not empowered to make appropriate resolution
\n\tawarding benefits nor has it been pointed out that under which
\n\tprovision of law, consent terms can be said to be contrary to the
\n\tprovision of law.  One may appreciate that there can be any
\n\trequirement of obtaining any sanction or approval from concerned
\n\tauthorities under which Nagarpalika is functioning.  The petitioner
\n\tmerely under the submission of consent being contrary to law, cannot
\n\tbe permitted to defeat the award and respondent No.1 has right to
\n\treap fruits thereunder. Collector’s order is pressed into service
\n\tfor defeating the right of respondent No.1 to take benefits of
\n\taward, is absolutely misplaced, misconceived and deserves to be
\n\trejected as from the face of it, it appears that Collector has not
\n\ttaken into consideration the correct position of law nor has he
\n\ttaken into consideration the observations made by this Court in
\n\tSpecial Civil Application No.2467 of 2005 in its order dated
\n\t5-7-2005.  Therefore, reliance upon the Collector’s order is of no
\n\tavail to the present petition. The petitioner have chosen not join
\n\tthe Collector or State as party respondent in the present
\n\tproceeding.  Therefore, it would not be appropriate for ths Court to
\n\tascertain anything from the State in this behalf.  Suffice it to say
\n\tthat the petitioner failed to point out as to how consent terms were
\n\tcontrary to law and not capable of being complied with.  The Court
\n\tunder Art.227 of the Constitution of India, has its well defined
\n\tlimitation wherein issues with regard to sanction of post,
\n\tnon-sanction of post, availability of vacancy, qualification of
\n\tcandidates are not to be looked into when those things have not been
\n\tpleaded or adjudicated upon by the Court of first instance whose
\n\torders are under challenge before this Court. After the judgment was
\n\tover, guidelines dated 3-8-2004 is pressed into service. Suffice it
\n\tto say, that even if guidelines did not permit any consent terms,
\n\tguidelines are issued on 3-8-2004 and naturally, therefore, it
\n\tcannot have any applicability when consent terms were filed.
\n\tTherefore, these guidelines are of no use whatsoever.  Suffice it to
\n\tsay that the petition being devoid of merits, deserves to be
\n\tdismissed and accordingly, it is dismissed. However, there shall be
\n\tno order as to costs.\n<\/p>\n
\t\t\t\t\t\t\t(S.R.BRAHMBHATT,
\nJ.)<\/p>\n
vijay*<\/p>\n
\t\t   \u00a0\u00a0\u00a0<\/p>\n
\t\t   Top<\/p>\n","protected":false},"excerpt":{"rendered":"
Gujarat High Court The vs Lataben on 11 September, 2008 Author: S.R.Brahmbhatt,&Nbsp; 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[16,8],"tags":[],"class_list":["post-203500","post","type-post","status-publish","format-standard","hentry","category-gujarat-high-court","category-high-court"],"yoast_head":"\nThe vs Lataben on 11 September, 2008 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-vs-lataben-on-11-september-2008\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The vs Lataben on 11 September, 2008 - 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