SCA/13041/2005 1/9 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 – 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 SCA/13041/2005 2/9 JUDGMENT respondent No.1 herein for closure of its unit viz. Abad Dairy (hereinafter referred to as “the dairy”). 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 SCA/13041/2005 3/9 JUDGMENT 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 SCA/13041/2005 4/9 JUDGMENT 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 SCA/13041/2005 5/9 JUDGMENT 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 SCA/13041/2005 6/9 JUDGMENT 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 SCA/13041/2005 7/9 JUDGMENT 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. SCA/13041/2005 8/9 JUDGMENT 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. SCA/13041/2005 9/9 JUDGMENT 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.]