Gujarat High Court
State Of Gujarat vs Saurashtra University Karmachari ... on 9 April, 2004
Author: Ravi R.Tripathi
Bench: Ravi R. Tripathi
JUDGMENT Ravi R.Tripathi, J.
1. All these matters relate to an award dated 27th February, 1997 passed by the Industrial Tribunal (2), Rajkot in Reference (IT) No.179 of 1984. Special Civil Application No.8404 of 1998 was filed on 30th September, 1998 challenging the award and praying that:
"(b) be pleased to quash and set aside the award passed by the Industrial Tribunal in Reference No.(I.T.) 179 of 1984, dated 27.2.1997;"
Special Civil Application No.9292 of 2000 is filed on 31st August, 2000 praying that, "(B) This Hon'ble Court would be pleased to allow present Special Civil Application by issuing a writ of mandamus or any other appropriate writ, order or direction in the nature of mandamus or any other appropriate writ, order or direction, directing the respondent No.1, State of Gujarat, to pass appropriate orders or Government Resolution for implementing the judgement and award passed by the Learned Industrial Tribunal, Rajkot for fixing the pay scale in different categories of the petitioner-Union, in the interest of justice."
Similarly, in Special Civil Application No.12830 of 2000, which was filed on 11th December, 2000, it was prayed that, "(A) This Hon'ble Court may be pleased to issue a writ of mandamus or writ in the nature of certiorari or any other appropriate writ, order or direction directing the respondent Nos.1 and 2 to carry out effectively the direction given by the Hon'ble Industrial Tribunal, Rajkot on 27.2.1997 by carrying out the pay fixation of the employees of different categories working in Bhavnagar University w.e.f. from 1.1.1973 and further they may be directed to regularize the service of the employees of the daily rated employees on completion of 240 days."
2. The question, which is raised before this Court, is as to whether the Industrial Tribunal had jurisdiction to entertain the dispute raised by Saurashtra University Karmachari Parivar and Bhavnagar University Karmachari Parivar, in view of a specific provision made under Section-7(1) of the Gujarat Universities Services Tribunal Act, 1983 ("the Act" for short). Section 7(1) reads as under:
"7.(1) The Tribunal shall have jurisdiction to entertain and decide disputes referred to in section 8, all suits and proceedings transferred to it under sub-section (2) of section 13 and appeals made under sub-section (3) of section 14,"
For our purpose, the provisions of Section-7(3) are also relevant, which read as under:
"(3) Notwithstanding anything contained in any other law for the time being in force, where the Tribunal has jurisdiction to entertain and decide a dispute as aforesaid, no other person, officer or authority shall have jurisdiction to entertain and decide such dispute and any such dispute pending before any person, officer, or authority on the appointed day shall as soon as may be, be transferred to the Tribunal for its decision."
3. Looking to the nature of the controversy involved in all these matters, it is required to be noted that under Section-13 of the Act, the jurisdiction of Civil Court was expressly barred. Section-13 reads as under:
13.(1) No Civil Court shall have jurisdiction to settle, decide or DEAL WITH any question which is by or under this Act required to be settled decided or dealt with by the Tribunal."
(2) All suits and proceedings between the University and any University employee relating to disputes connected with the conditions of service of such University employee, which are pending in any Civil Court or the appointed day shall be transferred to and continued before the Tribunal."
Despite specific enactment and provisions therein, the Industrial Tribunal, Rajkot continued to adjudicate the reference made to it. An application, being Exh.59, was filed before the Tribunal raising a preliminary question, but then, the learned Member of the Industrial Tribunal turned down that application by an order dated 17th February, 1993, and finally passed the award dated 27th February, 1997, which is in issue in all these petitions and specifically challenged in Special Civil Application No.8404 of 1998.
4. After Special Civil Application No.8404 of 1998 was filed on 30th September, 1998, the learned Assistant Government Pleader, who was appearing in the matter at the relevant time, produced a letter dated 15th March, 2000 before the Court, hearing the matter for admission, and the Court (Coram:H.K.Rathod, J.) passed the following order on 15th March, 2000:
"Ld. AGP Mr.H.H.Patel is for the petitioner. Ld. Advocate Ms.S.K.Mandavia is for Resp.No.1 and Mr.Rana is for Resp.No.2. When the matter was taken up for admission, Ld. Advocate Mr.Patel has produced a letter dated 15/3/2000 issued by the Section Officer, Legal Branch, Saurashtra University, Rajkot addressed to the G.P. as per which, the impugned award has already been implemented and therefore, it has been decided not to press this petition and not to proceed with the matter. Mr.Patel, therefore, seeks leave to withdraw this petition, to which the advocates for the respondents have no objection. Hence, the petitioner is permitted to withdraw this petition. This petition is disposed of as withdrawn. Notice discharged. Letter dated 15/3/2000 as above, is ordered to be taken on record."
The letter dated 15th March, 2000, which is on record, is written by the Section Officer, Legal Branch, Saurashtra University, Rajkot to the Government Pleader, High Court of Gujarat, Ahmedabad. In the letter, what is stated is that, "the award is implemented and, therefore, we do not want to proceed further with the case". What follows is important. It is stated that, "therefore, our name may be deleted as petitioner" . The letter did not instruct the Government Pleader to withdraw the entire petition. All this is required to be mentioned to set out the facts which have bearing on the issue involved in this petition.
5. After some time, Special Civil Application No.9292 of 2000 came to be filed seeking the implementation of the award. The petition was filed on 31st August, 2000, but, was got listed only on 4th September, 2000 when it was adjourned to 13th September, 2000. It was then adjourned to 20th September, 2000 and on 20th September, 2000, it was adjourned at the request of the learned Advocate for the petitioner to 9th October, 2000. Again, on 9th October, 2000, it was adjourned to 11th October, 2000 and finally, on 11th October, 2000, `Notice' was issued, returnable on 15th November, 2000. This notice was served to the State of Gujarat, through the Deputy Secretary, Education Department. When the Government came to know about the withdrawal of its petition, being Special Civil Application No.8404 of 1998, Miscellaneous Civil Application No.2384 of 2000 was filed on 20th December, 2000 with a prayer to recall order dated 15th March, 2000 passed in Special Civil Application No.8404 of 1998. It was stated in that Miscellaneous Civil Application that, "... ... Special Civil Application No.8404/98, because of some misunderstanding on the part of the learned Asstt. Government Pleader, the then, is withdrawn without entering into the merits of the matter. ... ..."
The aforesaid facts, related to the letter dated 15th March, 2000, are set out therein. Even at the cost of repetition, the same are mentioned here, "that the matter was withdrawn on the basis of a letter written by the Section Officer of Legal Branch of Saurashtra University, Rajkot dated 15th March, 2000 addressed to the Government Pleader, Gujarat High Court". It is also stated in that application that, `it was a bona fide misunderstanding on the part of the office of the Government Pleader in withdrawing the matter'.
5.1 The Court (Coram:H.K.Rathod, J.), by an order dated 25th January, 2001, allowed the Miscellaneous Civil Application and recalled the order dated 15th March, 2000 passed in Special Civil Application No.8404 of 1998 and restored the matter on file and ordered to circulate the same before the appropriate Court, taking up such matters.
5.2 Thereafter, on 11th April, 2001, this Court (Coram: K.M.Mehta,J.) passed an order, relevant of which is paragraph-3, which reads as under:
"3. Mr.Rana, learned advocate for employees of the petitioner University states that in the petition the Government is a petitioner. However, through inadvertence both Saurashtra University and Bhavnagar University have been joined as co-petitioners. Saurashtra University and Bhavnagar University may be joined as co-respondents instead of co-petitioners. Learned A.G.P. Mr.Hasmuch C.Patel states that necessary amendment in cause title will be made by his office. He will also file necessary application in this behalf. Affidavit in support of the petition will have to be filed by the Deputy Secretary, Education Department. Learned A.G.P. wants some time. The matter is adjourned to 18.4.2001."
5.3 The State then filed Civil Application No.5013 of 2001 on 25th April, 2001, which came to be allowed by this Court on 27th April, 2001 by the following order:
"Ms.Parikh ld. A.G.P. appeared on behalf of the State, Ms.Sejal Mandavia, L.A. appeared on behalf of respondent No.1 and Mr.Rana, L.A. appeared on behalf of Bhavnagar University Karmachari Parivar. Prayer 5(B) of the application is granted. The applicant will make necessary changes with cause title of the main petition. C.A. stands disposed of."
Paragraph 5(B) reads as under:
"Be pleased to permit the applicant herein to join Opponent No.3 & 4 herein as Respondent No.3 & 4 in Special Civil Application No.8404 of 1998, by deleting them as petitioner No.2 & 3 in the petition."
The respondent nos.3 and 4, in that Civil Application, were Saurashtra University, Kalavad Road, Rajkot and Bhavnagar University, Gaurishankar Lake Road, Bhavnagar respectively.
6. It transpires from the record that thereafter, when it was brought to the notice of the Court that Special Civil Application Nos.9292 of 2000 and 12830 of 2000 have a common question, an order was passed to place both the matters along with Special Civil Application No.8404 of 1998. An order to that effect is found in Special Civil Application No.12830 of 2000 on 29th August, 2001 and accordingly, all these matters were heard together and on 3rd October, 2001, the Court (Coram:P.B.Majmudar,J.) passed the following order in Special Civil Application No.8404 of 1998:
"Rule returnable on 6th December, 2001.
During the pendency of this petition, the impugned order so far as the State Govt. is concerned, is stayed. It is clarified that in the meanwhile, it would be open for the University to fix the pay scale of the concerned employees notionally as per the Award of the Industrial Tribunal but on the basis of the aforesaid Award, no financial burden to be fastened on the State Govt. during the pendency of the Special Civil Application.
On the same day i.e.03-10-2001, `Rule' was also issued in Special Civil Application Nos.9292/2000 and 12830/2000, returnable on 6th December, 2001 and the matters were ordered to be heard with Special Civil Application No.8404 of 1998.
7. Today, all these matters are taken up for final hearing. In Special Civil Application No.8404 of 1998, it is argued by the learned Government Pleader that the judgement and award is a nullity as it is passed by the Industrial Tribunal, which has and had no jurisdiction to pass such an award. The learned Government Pleader relied upon a decision of this Court in the matter of Saurashtra University & Anr. vs. Saurashtra University Karmachari Parivar, reported in 2004(1) G.L.R. 160. The learned Government Pleader also submitted that the said decision was carried in appeal, being Letters Patent Appeal No.21 of 2004, which is dismissed by the Division Bench consisting of Mr.Justice J.N.Bhatt and Mr.Justice K.A.Puj, by a judgement and order dated 25th February, 2004. The learned Government Pleader, therefore, submitted that this matter i.e. Special Civil Application No.8404 of 1998 be allowed and the judgement and award dated 27th February, 1997 passed by the Industrial Tribunal be quashed and set aside.
8. The learned Advocates appearing for respondent nos.3 and 4 namely, Saurashtra University and Bhavnagar University, submitted that in view of the legal position as laid down by the aforesaid judgement, the submissions of the learned Government Pleader be accepted and the petition be allowed and the judgement and award of the Industrial Tribunal be quashed and set aside.
9. The learned Advocates appearing for respondent nos.1 and 2, who have respectively filed Special Civil Application Nos.9292 of 2000 and 12830 of 2000, vehemently submitted that the judgement and award of the Industrial Tribunal is under judicial scrutiny of this Court under Article 227 of the Constitution of India and unless a specific ground is made out, the same is not required to be quashed and set aside, more particularly, when the matter pertains to the benefit of a period, which is by now more than three decades old. Besides that, the learned Advocates for respondent nos.1 and 2 also submitted that both the Universities i.e. respondent Nos.3 and 4, have not challenged the award and at one stage, they were with respondent nos.1 and 2 to grant the benefits, as awarded by this judgement and award and, therefore, Special Civil Application Nos.9292 of 2000 and 12830 of 2000 are required to be allowed and Special Civil Application No.8404 of 1998 is required to be dismissed and the authorities are required to be directed to implement the award at the earliest, because the matters are old not only by pace of time, but, have become old and stale even on account of the fact that number of employees have retired from service without getting the benefits which were to flow from the judgement and award under challenge in Special Civil Application No.8404 of 1998.
10. In light of the rival contentions of both the sides, this Court has to consider the controversy involved in the matter. Besides, there is a neat question of law, that is, `whether the Industrial Tribunal had jurisdiction to entertain the dispute in the face of the provisions of Sections 7 and 13 of the Act'. The controversy involved in the matter is in two parts, one, giving of benefit of pay scale from a particular date and second, regularisation of Class-III and Class-IV employees wherein also, the Universities having given the benefit of regularisation, the question remained that of from the date ordered by the Industrial Tribunal.
11. So far as the question of law is concerned, as stated hereinabove, this very Court had taken a view that when there is a special forum provided for under a special enactment, the other forum has no jurisdiction. This view is confirmed by the Division Bench of this Court. So far as other aspect of the matter is concerned, it is pressed by the learned Advocates for respondent nos.1 and 2, on the ground of equity, looking to the age of the litigation. The benefits which are granted by the award pertain to a period, which is more than three decades old by now. From the record, it is noticed that a particular pay scales were prevailing in both these Universities for various posts/cadres, which are set out hereunder along with the pay scales which were recommended by Desai Pay Commission:
Sr. Post/Cadre Pay-scale Recommendations
No. (Rs.) of Desai Pay
Commission (Rs.)
---- ----------- ---------- ---------------
1. (i) Junior Clerks 155-465 260-400
(ii) Typist 260-400
(iii) Laboratory Assistant 260-430
2. (i) Senior Clerk, etc.220-520 330-560
(ii) Proof Readers 350-560
(iii) Statistical Assistant380-600
3. (i) Head Clerk, etc. 315-575 425-800
(ii) Storekeeper 425-700
(iii) Assistant Accountant 525-900
4. (i) Section Officer 480-660 650-900
(ii) Deputy Accountant 650-1200
On Desai Pay Commission's recommendations, respondent nos.1 and 2 took up the matter with the University authorities. As the Universities were having the financial autonomy, respondent no.3, Saurashtra University passed two Resolutions viz. (i) Resolution dated 29th January, 1981 whereby the cadre of Section Officers were granted the benefits w.e.f. 1st January, 1973, but then, the period from 1st January, 1973 to 31st March, 1981 was to be considered for notional fixation only and the actual payment was to be made from 1st April, 1981. (ii) Resolution dated 16th October, 1981 was passed for remaining cadres. It was decided by this resolution to give the benefits with effect from 1st July, 1981 without there being any period for notional fixation and the actual payment was to be made from 1st July, 1981. By these two resolutions, the grievances of respondent nos.1 and 2, so far as the pay-scale is concerned, were redressed. The Tribunal has not passed any order relating to this and, therefore, even after it is held that the judgement and award of the Tribunal is without jurisdiction, this aspect is not going to be affected.
Then remain the controversy of `regularisation of services of Class-III and Class-IV employees', who had completed 240 days' service. It is recorded by the Tribunal in paragraph-10 on the basis of the reply filed by respondent no.4, Bhavnagar University, being Exh.57, as under:
"..... ..... about 55 workmen as shown in the annexure were employed by the University on fixed wages and daily wage though they have put in more than 240 days of service; that thereafter they were taken on probation and were regularised as permanent; thus keeping them away from the benefits of permanent workmen for a long time. .... ....."
In this behalf, the Tribunal has recorded in paragraph-38 that `these workmen are regularised from 1st January, 1980 (by Bhavnagar University)'. The Tribunal has ordered that the services of daily wagers and fixed wage earners of Class-III and Class-IV employees in both the Universities shall be regularised as permanent from the date they completed 240 days' of service, in each of the three years commencing from the date they entered into service of the respective Universities, and such employees are not held entitled to arrears of pay and allowances etc. on their regularisation.
The direction of the Tribunal to regularise Class-III and Class-IV employees as permanent from the date they completed 240 days' of service, will become non-existent in light of the fact that the Tribunal had no jurisdiction to entertain/adjudicate upon the dispute.
12. From the aforesaid facts recorded by the learned Member of the Industrial Tribunal in his award and order, it is clear that pay-scale was already granted to the employees of the Universities, belonging to different cadres with effect from different dates, by the aforesaid two Resolutions dated 29th January, 1981 and 16th October, 1981 (Saurashtra University) and Resolution dated 15th May, 1986 of Bhavnagar University. The Tribunal has only changed this date and made it uniform for both the Universities making it to be effective from 1st January, 1973 for notional fixation in the respective pay scales from that date. It is, therefore, argued that by preponing of date, no additional financial burden is caused to the Government and, therefore, the Government was not justified in challenging this award.
13. So far as the second demand is concerned, the University has already regularised its employees from 1st January, 1980. The Industrial Tribunal has ordered to prepone the said regularisation to a date on which an individual workman had completed 240 days in each of 3 years, commencing from the date they entered the service of respective Universities.
14. If an authority is to grant any benefit to any of its employee/s, it is always open for the authority to do so. When either of the party approaches the Tribunal for adjudication of the dispute, then, it is required to be considered as to whether the Tribunal has jurisdiction to decide such a dispute, as has happened in this case. The Government has come to this Court challenging the award on the ground that the award is a nullity because the Industrial Tribunal had no jurisdiction to entertain the dispute in view of a special forum being provided under a special statute. Taking into consideration the provisions of the Act, it is very clear that the Industrial Tribunal had no jurisdiction to entertain the dispute, more so when a provision is made even for the transfer of the pending suits and the proceedings. This shows the clear intent of the legislature that even the pending matters are transferred to a forum created under the special statute. Even under sub.section-2 of Section-13, when a provision is made that all the suits and proceedings between the University and the University employee shall be transferred and be continued before the Tribunal (forum created under the special statute), this Court cannot uphold the contention that the Industrial Tribunal had justification to adjudicate the matter. Only because, a preliminary issue was raised, which was decided against the Government, which may not have been challenged because of the indifferent and impersonal approach on the part of the Government employees, it cannot confer jurisdiction to the Industrial Tribunal. In the earlier part of this judgement, it is mentioned as to in what manner, Special Civil Application No.8404 of 1998 was withdrawn though there was no such instruction. A judicial notice can be taken of the fact that the matters of Government are always at discount, when it comes to personal attention and care.
15. In view of the aforesaid discussion, this Court is of the considered opinion that the judgement and award dated 27th February, 1997 passed by the Industrial Tribunal, Rajkot in Reference (IT) No.179 of 1984 is without any jurisdiction and, therefore, it is a nullity and as a natural consequence of that, the same is required to be quashed and set aside. Order accordingly. Rule is made absolute in Special Civil Application No.8404 of 1998.
16. In view of the Special Civil Application No.8404 of 1998 being allowed, Special civil Application Nos.9292 of 2000 and 12830 of 2000 are dismissed. Rule is discharged. No order as to costs.