SCA/9385/2008 1/8 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 SCA/9385/2008 2/8 JUDGMENT 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 SCA/9385/2008 3/8 JUDGMENT 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 SCA/9385/2008 4/8 JUDGMENT 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 SCA/9385/2008 5/8 JUDGMENT 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 SCA/9385/2008 6/8 JUDGMENT 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 SCA/9385/2008 7/8 JUDGMENT 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 SCA/9385/2008 8/8 JUDGMENT of settlement. (K.M.THAKER, J.) ynvyas