1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR JUDGMENT (1) D.B.CIVIL SPECIAL APPEAL NO.1084/99 M/S Sanghi Brothers & Anr. V/s Shri Babu Khan & Anr. ( 2) D.B. CIVIL SPECIAL APPEAL NO.1132/99 Shri Babu Khan V/S M/S Sanghi Brother & Ors. Date of Judgment : 4.4.2008 HON'BLE MR.JUSTICE N.P.GUPTA HON'BLE MR.JUSTICE SANGEET LODHA Mr.B.C.Mehta, for the appellant. Mr.Mahesh Bora, for the respondents. BY THE COURT : 1. These two appeals arise out of order dated 15.7.1999 passed by the learned Single Judge, whereby the writ petition preferred by the writ petitioners M/s. Sanghi Brothers & Anr. (appellants in Appeal No.1084/99 and respondents in Appeal No.1132/99, hereinafter referred to as “the petitioners”), has been allowed and order impugned dated 29.8.88 passed by the Prescribed Authority, under Section 28 A of the Rajasthan Shops and Commercial Establishment Act, 1958( in short “the Act of 1958” hereinafter) directing reinstatement of the workman Shri Babu Khan(respondent in Appeal No.1084/99 and appellant in Appeal No.1132/99, hereinafter referred to as “the respondent workman”) in service with all consequential benefits, has been set aside. 2 2. The Appeal no. 1132/99 has been preferred by the respondent workman aggrieved by setting aside of the order dated 29.8.88 passed by the Prescribed Authority and the Appeal No.1084/99 has been preferred by the petitioners aggrieved by the order passed by the learned Single Judge directing that the amount of wages a sum of Rs.11684/- paid to the respondent workman in pursuance of directions issued by the Authority under the Payment of Wages Act, shall not be refunded and the same shall be adjusted , if the proceeding are resorted to enforce the settlement dated 21.10.87 arrived at between the parties before the Conciliation Officer. 3. The background facts in the nutshell are that the respondent workman was employed in the petitioners' cinema hall, as Gate Keeper. The services of the respondent workman were brought to an end with effect from 17.8.87 by accepting resignation tendered by him, said to be under mental distress. The respondent workman submitted an application to withdraw his resignation but , the same was not acceded to. Aggrieved by the illegal discharge, the respondent workman preferred an application before the Prescribed Authority under Section 28 A of the Act of 1958. The dispute was also raised before the Conciliation Officer under the provisions of Industrial Disputes Act, 1947. A settlement of dispute was arrived at between the parties in the course of conciliation proceedings, wherein the 3 petitioners inter alia agreed to accord fresh appointment to the respondent workman on the post of Gate Keeper w.e.f 1.11.87. According to the petitioners, the settlement was given effect to and the respondent workman was allowed to join duties on 1.11.87. However, the stand of the respondent workman is that the settlement arrived at has not been implemented. 4. Before the settlement being arrived at between the parties as aforesaid, on the application preferred by the respondent workman, a notice was issued by the Prescribed Authority to the petitioners on 16.10.87, fixing the date of hearing 29.10.87. The notices were served upon the petitioners on 21.10.87 but , nobody appeared on their behalf, therefore, the matter was proceeded ex parte against them. On 18.8.88, the petitioners submitted an application before the Prescribed Authority stating therein that the settlement has been arrived at between the parties and in pursuance thereof, the respondent workman has been taken back on duty,therefore, the application may be rejected. A copy of the settlement arrived at was also submitted alongwith the application. However, it appears that no application for setting aside the ex parte order was ever preferred by the petitioners before the Prescribed Authority and the petitioners did not choose to put in appearance before the Prescribed Authority and participate in the proceedings after 4 submissions of the application, as aforesaid. The Prescribed Authority found the discharge of the respondent workman from service illegal and accordingly, he was ordered to be reinstated in service with full back wages. 5. The learned Single Judge has arrived at the finding that once the settlement was arrived at between the parties, the only remedy left to the respondent workman was to get executed the settlement by resorting to the remedy provided under Section 29 of the Act of 1947. The learned Single Judge opined that after settlement having been arrived at before the Conciliation Officer, the application before the Prescribed Authority under the Act of 1958 had become infructuous and the said authority had no competence to decide the matter at all. On submissions made by the learned counsel appearing on behalf of the petitioners regarding the refund of the payment of wages made to the respondent workman under an order passed by the Payment of Wages Authority , the learned Single Judge held that the petitioners are not entitled for the refund of the amount. However, it has been ordered that said amount shall be adjusted, if the proceedings for the enforcement of the award is resorted to. 6. It is contended by the learned counsel for the petitioners that the settlement having been arrived at between the parties and the respondent workman having been taken back on duty in 5 pursuance thereof no dispute between the parties survived and therefore, order impugned in the writ petition passed by the Prescribed Authority under the Act of 1958 has rightly been set aside by the learned Single Judge holding it to be without jurisdiction. The learned counsel submitted that the settlement arrived at between the parties was given effect to and the respondent workman was taken back on duty, however,after a few days, he abandoned the service and therefore, he was not entitled to claim any wages in terms of settlement arrived at. Accordingly, the learned counsel urged that , the learned Single Judge has erred in declining the refund of the amount paid to the respondent workman in pursuance of the order passed by the Authority under the Payment of Wages Act . During the course of arguments, the learned counsel while showing the photo stat copies of the relevant pages of the Provident Fund Account Register said to be maintained by them inter alia for the period 1987-88, attempted to establish that in November, 1987, the P.F. contribution of the respondent workman who was taken back in service in pursuance of the settlement w.e.f. 1.11.87 , was deposited by the petitioners with the competent authority. According to the learned counsel, the respondent workman having joined the duties in pursuance of the settlement and abandoned the service thereafter, he is not entitled for any relief. 6 7. Per contra, the learned counsel appearing on behalf of the respondent workman submitted that notwithstanding the settlement arrived at , there was no bar under the law for Prescribed Authority to decide the application assailing the validity of illegal discharge, submitted on behalf of the respondent workman. The learned counsel submitted that the petitioners despite service, did not care to participate in the proceedings before the learned Prescribed Authority and for this reason, the matter was proceeded ex parte against them. The learned counsel urged that no application for setting aside ex parte proceedings was preferred on behalf of the petitioners before the Prescribed Authority. The learned counsel urged that the Prescribed Authority has arrived at a categorical finding that the respondent workman has not been taken back in service in pursuance of the settlement arrived at. The learned counsel contended that the petitioners neither intend to enforce the settlement nor want to comply with the order passed by the Prescribed Authority, thus, their conduct dis entitles them from invoking extra ordinary jurisdiction of this Court under Article 226 of the Constitution of India and for this reason alone, the writ petition was liable to be dismissed. The learned counsel submitted that by no stretch of imagination, it can be said that the order impugned in the writ petition passed by the Prescribed Authority suffers from any inherent lack of jurisdiction. 7 Accordingly, the learned counsel prayed that the order under appeal passed by the learned Single Judge deserves to be set aside. 8. We have considered the rival submissions of the counsels appearing for the parties and perused the record. 9. It is common ground between the parties that assailing the validity of discharge from service , the respondent workman was entitled to resort to the remedy both under the provisions of the Act of 1947 by raising an industrial dispute before the Conciliation Officer and by making an appropriate application u/s 28 A of the Act of 1958 before the Prescribed Authority. It is also not in dispute that before the settlement of the dispute during the course of conciliation proceedings, the respondent workman had already preferred an application before the Prescribed Authority u/s 28 A of the Act of 1958. The notices were duly served upon the petitioners but they did not choose to put in appearance and contest the proceedings. Consequently, the matter was proceeded ex parte against them. Even thereafter, while making an application before the Prescribed Authority to the effect that the settlement of a dispute has been arrived at between the parties and the respondent workman has been taken back on duty, the petitioners did not care to make an application for setting aside the ex parte proceedings and even did not participate in the further proceedings . Though, the 8 petitioners have made an attempt to show that in pursuance of the settlement , the respondent workman was taken back in service w.e.f. 1.11.87 however, on the basis of the material on record , we do not find ourselves persuaded to accept the submissions made by the learned counsel that the settlement arrived at was given effect to. During the course of the arguments, the learned counsel has urged that the respondent workman was taken on duty on 1.11.87, he continued to discharge his duties till 11.11.87 and thereafter, he abandoned the service. On being pointedly asked that if the respondent workman was given fresh appointment w.e.f. 1.11.87 and after joining the duties in pursuance thereof, he continue to work only upto 11.11.87 then, where was the occasion to deposit the amount of P.F. for entire month of November, 87, the learned counsel for the petitioners had no answer. 10. It is to be noticed that in para no.18 & 20 of the writ petition, it is stated on behalf of the petitioners that fresh appointment on the post of Gate Keeper was given to the petitioner from 1st November, 1987 and he joined the duty on 1st November,1987 however, in para no. 25 (B)(ii), it is stated that the respondent workman was given appointment on 1st November,1987 and he joined duty on 10th November,1987 and continued upto November,1987. Neither the copy of the order appointing the respondent workman w.e.f. 1.11.87 nor any 9 receipt showing the payment of salary to the respondent workman has been placed on record by the petitioners either before the Prescribed Authority or before the learned Single Judge or even at this stage before this Court. However, it is stated that the petitioners refused to accept the wages, therefore, the wages for the month of November amounting to Rs.303.55 were deposited vide pay order no. A.642720 dated 17th December,87 in the office of respondent no.2 (in the writ petition) i.e. the Prescribed Authority on 18th December,87 and a receipt was issued by the said authority on 19th February, 88 and was sent to the petitioners on 30th April,88. However, a perusal of the photo stat copy of the receipt dated 19th February, 88 and communication dated 30th April,88 placed on record, reveal that the same are not issued by the Prescribed Authority but appear to have been issued by the Authority under Payment of Wages Act. Suffice it to say that the pleadings of the petitioners regarding the fresh appointment being accorded to the respondent workman and his continuance in service, suffers from self contradiction and the proof sought to be produced so as to establish that the respondent workman was taken back in service in pursuance of the settlement does not inspire confidence. That apart , no such documents were ever placed on record by the petitioners before the Prescribed Authority. Thus, on the facts and in the circumstances of the case,we are satisfied 10 that the finding recorded by the Prescribed Authority that the settlement arrived at has not been enforced, which in turn stands confirmed by the learned Single Judge, does not suffer from any infirmity or illegality. 11. It is also significant to note that after passing of the order dated 29.8.1988 by the Prescribed Authority under Rajasthan Shops and Commercial Establishment Act, the respondent filed an application under Section 15 of the Payment of Wages Act, and on that application, the learned Authority under Payment of Wages Act passed an order dated 15.10.1994 holding the respondent to be entitled to wages from 18.8.1987 to 31.10.1988, and also imposed penalty. Admittedly, that order had not been challenged, and rather the petitioner had made payment of the amount immediately on 24.12.1997. Since, the said order of the Payment of Wages Authority was complied with, and no appeal having been filed, has become final between the parties, and therefore, also the petitioner cannot contend that in November, 1987 itself the respondent had abandoned the job, and therefore, is not entitled to any relief, or should be declined in the present litigation. 12. Coming to the jurisdiction of the Prescribed Authority to decide the application preferred by the respondent workman u/s 28 A of the Act of 1958, it is to be noticed that the Prescribed Authority has the jurisdiction to decide the application preferred 11 by an employee of commercial establishment assailing the validity of its discharge from service. Admittedly, the application as aforesaid was preferred by the respondent workman, before the settlement of dispute being arrived at before the Conciliation Officer under the provisions of the Act of 1947. It is true that a settlement of dispute arrived at before the Conciliation Officer is binding on the parties to the settlement by virtue of provisions of Section 18 of the Act of 1947 and any person committing the breach of any of the terms of the settlement is liable to be prosecuted and punished under the provisions of Section 29 of the Act of 1947. But then, if the settlement has not been given effect to , no provision bars the Prescribed Authority to adjudicate the dispute raised before it on merits in accordance with law. In any case, on account of the settlement arrived at between the parties, it cannot be inferred that there was an inherent lack of jurisdiction on the part of the Prescribed Authority in deciding the dispute raised before it. 13. It is to be noticed that the conduct of the petitioners is not above the board. It is not in dispute that the petitioners did not choose to put in appearance before the Prescribed Authority despite service and when the matter was proceeded ex parte and at later stage, they attempted to frustrate the proceedings before the Prescribed Authority u/s 28 A of the Act of 1958, by 12 way of an application dated 18.8.88 stating therein that the dispute between the parties has already been settled by way of settlement arrived at before the Conciliation Officer and in pursuance thereof, the respondent workman has been taken back in service. However, in the said application, there is not even a whisper that after taking the respondent workman on duty on 1.11.87, he has abandoned the service . It is really unfortunate that the petitioners instead of giving effect to the settlement arrived at before the Conciliation Officer or the order passed by the Prescribed Authority has compelled the respondent workman, a lowly paid employee to suffer this protracted litigation. To say the least, the attempt made by the petitioners for crafty evasion of the liability incurred under the law, cannot be countenanced by this Court while exercising extra ordinary jurisdiction under Article 226 of the Constitution of India. 14. The matter needs to be examined from yet another angle, under the settlement , the petitioners were under an obligation to take back the respondent workman in service w.e.f. 1.11.87 and on account of the order impugned in the writ petition dated 29.8.88, the discharge of the respondent workman from service w.e.f. 17.8.87 has been held to be illegal and the respondent workman has been ordered to be reinstated in service with consequential benefits. Therefore, in substance, the entitlement 13 of the respondent workman for the relief under the settlement of dispute arrived at between the parties on 21.10.87 and under the order dated 29.8.88 passed by the Prescribed Authority under Section 28 A of the Act of 1958, has no much difference, therefore, if by passing the impugned order while arriving at the finding that the settlement arrived at has not been given effect to , the justice has been done between the parties then, there is absolutely no reason as to why the petitioners should be granted any indulgence in exercise of equity jurisdiction of this Court which is always exercised for the sake of justice. 15. In view of the discussion above, we are of the considered opinion that the learned Single Judge has erred in exercising the extra ordinary jurisdiction in favour of the petitioners and interfering with the order impugned passed by the Prescribed Authority. 16. In the result, the Appeal No.1132/99 preferred by the respondent workman succeeds, it is hereby allowed. The Appeal No.1084/99 preferred by the writ petitioners fails, the same is hereby dismissed. The impugned order dated 15.7.99 passed by the learned Single Judge is set aside. The writ petition preferred by the petitioners shall stand dismissed. No order as to costs. (N.P.GUPTA),J. (SANGEET LODHA),J. /aditya/