SCA/25815/2007 1/10 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 25815 of 2007 With SPECIAL CIVIL APPLICATION No. 25816 of 2007 With SPECIAL CIVIL APPLICATION No. 25095 of 2007 For Approval and Signature: HONOURABLE MR.JUSTICE S.R.BRAHMBHATT ========================================================= 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 ? ========================================================= SALAYA MUNICIPALITY BOROUGH - Petitioner Versus ANWAR AAMAD JOKHIYA - Respondent ========================================================= Appearance : MR MEHUL H RATHOD for Petitioner : 1, DS AFF.NOT FILED (N) for Respondent : 1, MR NV ANJARIA for Respondent : 1, ========================================================= CORAM : HONOURABLE MR.JUSTICE S.R.BRAHMBHATT Date : 11/11/2008 COMMON ORAL JUDGMENT SCA/25815/2007 2/10 JUDGMENT 1. Heard learned counsel for the parties. These three petitions have been heard together and being disposed of by this common order as the petitioners are common in all the petitions and the issue involved is with regard to common order passed by learned Labour Court impugned in these proceedings. 2. The petitioner Municipal Borough has preferred these petitions challenging the order dated 10.8.2007 passed by the Presiding Officer, Labour Court Jamnagar in Reference (LCD) No. 32 of 2001, 6 of 2002 and 7 of 2002 ordering reinstatement of the respondent workmen with continuity in service with 20% of back wages during the pendency of the Reference by way of interim relief. 3. Facts in brief leading to filing these petitions deserves to be set out in order to appreciate the real controversy involved in these matters. 4. The workmen respondents hereinabove raised industrial dispute with regard to their status and demanded permanency benefits. The dispute came to be referred to the competent court, wherein, it came to be numbered as Reference (LCD) No. 32 of 2001, 6 of 2002 and 7 of 2002. During the pendency of the Reference, respondent workmen made an application for interim relief. In reply thereto present petitioner, who was SCA/25815/2007 3/10 JUDGMENT first party employer in Reference, filed a purshis on 25.7.2002 signed by Chief Officer, Salaya taking a specific stand with regard to maintaining status-quo with regard to service conditions of respondent workman and indicating his no objection if any such order is passed by the Court. The parties arrived at compromise for settling their dispute and disputes with all respondents workmen come to an end and by amicable settlement, which was placed on record during Lok Adalat held on 2.10.2004, the said settlement contained condition that the settlement was to be effected by both the parties within 30 days. The workmen would give up their claim for arrears and they were to be made permanent with effect from 1.10.2004 and workmen to be given benefits on their basis and for the purpose of granting benefits of gratuity, date of entering into service to be taken into consideration. A condition was specifically mentioned in the settlement that said settlement was subject to be approved by Director of Municipality and in case, same is not granted, then, the settlement was to be revoked and References were to be conducted on merits. 5. After settlement, the workmen respondents continued and apprehended their termination and therefore, they have filed the petitions being Special Civil Application Nos. 14074 of 2005, SCA/25815/2007 4/10 JUDGMENT 14079 of 2005 to 14083 of 2005. Abruptly on 9.7.2005, their services were put an end. The aforesaid petitions came to be disposed of by this Hon'ble Court (Coram: H.K. Rathod, J.) vide order dated 23.1.2007 after hearing learned counsels of all the concerned parties and observed that no sanction/ approval had been granted from Regional Director of Municipality, Rajkot and therefore, question of approval would not arise and therefore, the settlement arrived at Lok Adalat had not come into effect and hence the petitioner's reliance upon settlement was misplaced. This averments were reproduced by the Court from the affidavit of respondent therein. In view of the decision of Apex Court in case of P.T. Thomas Vs. Thomas Job, reported in (2005) 6 SCC 478, in respect of effect of settlement arrived at between the Lok Adalat and in view of the provisions of Legal Services Authorities Act, 1987, the petitioners were directed to make appropriate application for revival of the References and also seek interim order of reinstatement during pendency of the Reference. 6. It deserves to be noted that this order was passed after hearing counsels of the respective parties and in pursuance of the said order, applications for revival were made and said order of revival has not been challenged. As the References were revived, the respondent workmen filed an application in References seeking SCA/25815/2007 5/10 JUDGMENT appropriate interim relief as during pendency of the Reference and as stated hereinabove, in the interregnum period their services were put an end to, the Labour Court passed composite order in all the three References on 10.8.2007, which is impugned in present petitions. 7. Shri Rathod, learned counsel appearing for the petitioner contended that the revival of the Reference have been challenged as References have to be decided on merits but as the original References were with regard to regularization only and as the termination was not under challenge, the order impugned order, whereunder, the reinstatement with 20% of back wages is ordered, suffer from patent illegality and therefore, same deserves to be quashed and set aside. 8. Shri Rathod, learned advocate further contended that the services of respondent workmen were put an end to with effect from 9.7.2008 and at that time, no reference was pending and therefore, no breach of Section 33A of the ID Act could have been legitimately arise. However, assuming for the sake of submission without conceding that approval/permission is required, then also, the termination could be said to be without approval and appropriate remedy available to respondents workmen could have been resorted by them, seeking any interim relief in Reference which SCA/25815/2007 6/10 JUDGMENT amounts to relief against termination. 9. Shri Rathod submitted that the Labour Court has not appreciated the grounds for termination that respondents workmen were not entitled to even be regularized in view of the fact that they were back door entrants and petitioner is facing dire financial crises and petitioner is not in a position to fulfill its expenses. In the alternative and without prejudice to the aforesaid submission, Mr. Rathod further submitted that in case the Court is inclined to negative the challenge to the impugned order, the concerned Court be directed to decide and dispose of the Reference within stipulated time of 6 months. 10.Shri Anjaria, learned counsel appearing for respondent workmen submitted that technical plea with regard to non-existence of the Reference on the date when the services came to be terminated would be of no avail to the petitioner as the compromise decree has all the sanctity and therefore, when the order of this Court was accepted by the petitioner without any dimmer, the same came to be binding on all the parties and revival application and its allowing in itself would show that the decree is satisfied and therefore, in the interregnum period, a fiction of the Reference from file of Labour Court, cannot be held to be so nonest as to SCA/25815/2007 7/10 JUDGMENT exempt petitioner from its obligation under the provisions of ID Act especially under Section 33A. 11.Shri Anjaria also placed heavily reliance upon the purshis dated 25.7.2002 passed up under the signature of Chief Officer wherein, it has been eloquently made clear that services are not likely to be terminated and workmens' service condition be maintained and even if some order is passed, the petitioner has no objection. He placed reliance upon the decision of Apex Court in Case of P.T. Thomas Vs. Thomas Job, reported in (2005) 6 SCC 478 and submitted that the order passed under compromise or decree, was required to be fully complied with and subsequent proceedings were in fact towards settlement of the same and therefore, the workmen are to be treated as protected by provisions of ID Act as the References were treated to be pending. At the end, he submitted that in view of the aforesaid, petitions deserve to be dismissed. 12.This Court has heard learned counsel for the parties and perused the impugned order. It deserved to be noted that the purshis passed up by the Chief Officer, Municipal Borough on 25.7.2002 in References is required to be taken into consideration before adverting to the rival contentions of the parties. The said purshis unequivocally contained declaration that work SCA/25815/2007 8/10 JUDGMENT being different and duties have been discharged by the workmen is of perennial nature. The first party also needs the work and therefore, there is no question of discharging them. The Reference with regard to demand for regularization is pending and by virtue of Section 33A of ID Act, there is no scope for making change in the service condition. Despite that, if the order of status-quo with regard to service condition is passed, the petitioner has no objection. This purshis is signed by Chief Officer and not by any elected member of the municipality. Chief Officer represents the Municipality and is accountable to the State as well. When this purshis is not disputed in any manner being that of fraudulently filed or being that of without authority of law or any other ground, no court shall ignore the same. Against this backdrop, the settlement arrived at between the parties and which is placed on record and in terms whereof, the references were disposed off, deserved to be examined. 13.The settlement has also not been challenged any way by any party being fraudulent or being without any authority of law or being obtained by any dubious method, on the contrary, the casting of the settlement go to show that signatory of the purshis is a responsible person and said settlement is subject to approval obtained from the Director of Municipality and SCA/25815/2007 9/10 JUDGMENT in case, such approval is not coming forward, then, the settlement stand revoked and the References will be proceeded on its own merit from that point onward. It deserved to be noted that duty was cast upon the petitioner municipality to move appropriate application for seeking approval for according the benefits. Counsel for the petitioner could not deny the recording of this Court (Coram: H.K. Rathod, J.) as it is observed in the order that no such application seeking approval had ever been made. When that stand is taken, then, it will not be open for the petitioner to say that no reference was pending on file of the Court. The petitioner cannot be permitted to blow hot and cold on the same breath as it can be done in the instant case. The petitioner has accepted the order of this Court and counsel for the petitioner has fairly stated before this Court that revival has not been challenged and it has not been challenged even in this petition. The challenge is only with regard to granting of reinstatement with 20% back wages. 14.The Apex Court has in case of P.T. Thomas (supra) has clearly observed the purport and efficacy of the order passed upon the settlement under instrumentality and Legal Services Authorities Act, 1987. SCA/25815/2007 10/10 JUDGMENT 15.The order of termination, which is sought to be justified cannot be said to be an order in eye of law as there was absolutely non-compliance with provisions of ID Act. However, this Court hastioned to add here that elaborate observation may adversely affect the rival contention of the parties with that regard. Suffice it to say that in the aforesaid peculiar facts and circumstances of the case, can it be stated that the order impugned deserved to be interfered with under Article 227 of the Constitution of India. The answer would be emphatic “NO”. The portion of back wages of-course can be said to be subject to final out come of the References but then in itself would be militate against the order of reinstatement. The provisions of ID Act are absolutely clear and both the parties have to carry out their respective obligations cast thereunder upon them. 16.With this observation, this Court is of the view that petitions deserve to be dismissed as bereft of merits and accordingly, petitions are dismissed. However, there shall be no order as to costs. However, in the fitness of thing, it is directed that the References be disposed of on merits as expeditiously as possible preferably within 6 months from the receipt of the writ of this order. (S.R.BRAHMBHATT, J.) pallav