Gujarat High Court
Vadodara Municipal Corporation vs Hasmukhbhai Becharbhai Vaghela & on 18 September, 2017
Author: R.Subhash Reddy
Bench: R.Subhash Reddy, Vipul M. Pancholi
C/LPA/1419/2017 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
LETTERS PATENT APPEAL NO. 1419 of 2017
In SPECIAL CIVIL APPLICATION NO. 12185 of 2016
TO
LETTERS PATENT APPEAL NO. 1423 of 2017
In
SPECIAL CIVIL APPLICATION NO. 12189 of 2016
With
CIVIL APPLICATION NO. 11413 of 2017
In
LETTERS PATENT APPEAL NO. 1419 of 2017
TO
CIVIL APPLICATION NO. 11417 of 2017
In
LETTERS PATENT APPEAL NO. 1423 of 2017
==========================================================
VADODARA MUNICIPAL CORPORATION....Appellant(s)
Versus
HASMUKHBHAI BECHARBHAI VAGHELA & 1....Respondent(s)
==========================================================
Appearance:
MR NILESH A PANDYA, ADVOCATE for the Appellant(s) No. 1
==========================================================
CORAM: HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH
REDDY
and
HONOURABLE MR.JUSTICE VIPUL M. PANCHOLI
Date : 18/09/2017
ORAL ORDER
(PER : HONOURABLE THE CHIEF JUSTICE MR. R.SUBHASH REDDY)
1. There is similarity in facts and common question of law arise for consideration, as such, all these appeals are heard together and disposed Page 1 of 10 HC-NIC Page 1 of 10 Created On Sun Sep 24 10:36:45 IST 2017 C/LPA/1419/2017 ORDER off by this common order. For the purpose of disposal, we draw the facts from the Letters Patent Appeal No.1419 of 2017 which is directed against the order passed in Special Civil Application No.12185 of 2016.
2. The original petitioner in Special Civil Application No.12185 of 2016 is the appellant in this appeal which is filed under Clause 15 of the Letters Patent aggrieved by the order of the learned Single Judge dated 24.8.2016. The aforesaid Special Civil Application was filed with the prayers which read as under:
"8(A) This Hon'ble Court be pleased to issue a writ of mandamus and/or certiorari or any other appropriate writ, order or direction and be pleased to call for R & P of Recovery Application No.487 of 2007 from the Labour Court No.1, Vadodara and after perusing the same, be pleased to quash and set aside the award and order, dated 24.9.2015, passed in Recovery Application No.487 of 2007 by the Labour Court No.1, Vadodara.
(B) Pending admission, hearing and final disposal of this petition, this Hon'ble Court be pleased to stay the implementation, execution and operation of the award and order, dated 24.9.2015, passed in Recovery Application No.487 of 2007 by the Labour Court No.1, Vadodara.
(C) Any other and further reliefs as deemed just and proper looking to the facts of this case, may kindly be granted in favour of the petitioner, in the interest of justice."Page 2 of 10
HC-NIC Page 2 of 10 Created On Sun Sep 24 10:36:45 IST 2017 C/LPA/1419/2017 ORDER
3. The learned Single Judge, in view of the earlier order passed in similar matters in Special Civil Application No.10008 of 2013 and allied matters, dismissed the petition. The respondent-workmen were the applicants in Recovery Applications which were based on the earlier award made in Reference (IT) No.446 of 1981 wherein the entitlement of the respondents for certain benefits in the context of the award was granted. A copy of the award passed in Reference (IT) No.446 of 1981 is produced during the course of hearing. The operative portion of the award dated 19.12.1983 passed in Reference (IT) No.446 of 1981 reads as under:
"In view of these facts, I direct the Corporation to make permanent the rojamdari workmen who have joined the service in 1978 and thereafter and who have completed three years of service and those who will complete three years of service in future provided they have completed 720 days of service by such a time. The Corporation to pay costs of Rs.50/- to the Union."
Based on such benefits conferred in Reference (IT) No.446 of 1981 and similar such awards, several recovery applications were filed before the Labour Court and those recovery applications were allowed by the Labour Court. Against one such application, at earlier point of time, Page 3 of 10 HC-NIC Page 3 of 10 Created On Sun Sep 24 10:36:45 IST 2017 C/LPA/1419/2017 ORDER Special Civil Application No.10008 of 2013 was filed which was dismissed by the learned Single Judge of this Court and the same was confirmed in Letters Patent Appeal. When a similar matter has come up, the learned Single Judge, following the earlier order passed in Special Civil Application No.10008 of 2013 and allied matters, dismissed the Special Civil Application filed by the appellant-Corporation.
4. Learned counsel for the appellant Mr.Nilesh Pandya, though has not disputed on factual background of the case being similar to that of Special Civil Application No.10008 of 2013 and allied matters, tried to make a distinction stating that consequent to the passing of the orders in Special Civil Application No.10008 of 2013, they have issued notice to the respondent by invoking power under Section 19 of the Industrial Disputes Act, 1947 (hereinafter referred to as `the ID Act') and terminated the award passed in Reference (IT) No.446 of 1981 and hence in view of such termination, the respondent herein who was the applicant before the Tribunal is not entitled for the benefits conferred in Recovery Application No.446 of 1981. In view of said plea of termination, we have closely examined the provision under Section 19 of the Act, which Page 4 of 10 HC-NIC Page 4 of 10 Created On Sun Sep 24 10:36:45 IST 2017 C/LPA/1419/2017 ORDER deals with the period of operation of settlements and awards. It also deals with the situation that if there is a change in circumstance, government is empowered to refer the matter for modification or for shortening of the period of operation of the award in appropriate cases. At the same time, it also provides under Section 19(2) of the Act for termination of settlements. For the purpose of disposal of this appeal, we deem it appropriate to refer to the provisions of Section 19 of the Act which reads as under:
"19.Period of operation of settlements and awards-
(1) A settlement shall come into operation on such date as is agreed upon by the parties to the dispute, and if any date is agreed upon, on the date on which them memorandum of the settlement is signed by the parties to the dispute.
(2) Such settlement shall be binding for such period as is agreed upon by the parties, and if no such period of agreed upon, for a period of six months from the date on which the memorandum of settlement is signed by the parties to the dispute, and shall continue to be binding on the parties after the expiry of the period aforesaid, until the expiry of two months from the date on which a notice in writing of an intention to terminate the settlement is given by one of the parties to the other party or parties to the settlement.
(3) An award shall, subject to the
provisions of this section, remain in
operation for a period of one year from the Page 5 of 10 HC-NIC Page 5 of 10 Created On Sun Sep 24 10:36:45 IST 2017 C/LPA/1419/2017 ORDER date on which the award becomes enforceable under section 17A.
Provided that the appropriate Government may reduce the said period and fix such period as it thinks fit:
Provided further that the appropriate Government may, before the expiry of the said period, extend the period of operation by any period not exceeding one year at a time as it thinks fit so, however, that the total period of operation of any award does not exceed three years from the date on which it came into operation.
(4) Where the appropriate Government, whether of its own motion or on the application of any party bound by the award, considers that since the award was made, there has been a material change in the circumstances on which it was based, the appropriate Government may refer the award or a part of it to a Labour Court, if the award was that of a Labour Court or to a Tribunal, if the award was that of a Tribunal or of a National Tribunal, for decision whether the period of operation should not, by reason of such change, be shortened and the decision of Labour Court or the Tribunal, as the case may be on such reference shall, be final.
(5) Nothing contained in sub-section (3) shall apply to any award which by its nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the award.
(6) Notwithstanding the expiry of the period of operation under sub-section (3), the award shall continue to be binding on the parties until a period of two months has elapsed from the date on which notice is given by any Page 6 of 10 HC-NIC Page 6 of 10 Created On Sun Sep 24 10:36:45 IST 2017 C/LPA/1419/2017 ORDER party bound by the award to the other party or parties intimating its intention to terminate the award.
(7) No notice given under sub-section(2) or sub-section(6) shall have effect, unless it is given by a party representing the majority of persons bound by the settlement or award, as the case may be."
5. From the perusal of the aforesaid provisions, it is clear that there is a provision for termination of settlement under Section 19(2) of the Act and further under Section 19(4) of the Act, there is a provision for referring the matter by the government for modification of the earlier award in appropriate cases where there is a plea of material change in the circumstances. Learned counsel also placed reliance under Section 19(3) of the Act which says that the award, subject to the provisions of Section 19, remain in operation for a period of one year. However, the same is subject to provisions under Section 19(5) of the Act.
6. From the perusal of Section 19(5) of the Act, it is clear that nothing contained in sub- section (3) shall apply to any award, which by nature, terms or other circumstances does not impose, after it has been given effect to, any continuing obligation on the parties bound by the Page 7 of 10 HC-NIC Page 7 of 10 Created On Sun Sep 24 10:36:45 IST 2017 C/LPA/1419/2017 ORDER award. From the perusal of the earlier award passed in Reference (IT) No.446 of 1981, it is clear that there is continuing obligation on the parties and same is binding on the appellant- Corporation which is a party to the award. In that view of the matter, the benefit under sub- section 3 is not available and such award cannot also be terminated in exercise of powers under Section 19(2) of the Act. If at all there is a change in circumstance, the only option available to the parties who are bound by the award is under sub-section 4 and shall have continuing obligation unless on further reference by the appropriate government, earlier award is modified or altered. In absence of any such reference by the government, we are of the considered view that the appellant-Corporation could not have terminated unilaterally the award passed in Reference (IT) No.446 of 1981.
7. Learned advocate, in support of his arguments, has placed reliance on the judgment in the case of Karnani Properties Ltd. V/s State of West Bengal and Others, reported in 1990(4) SCC 472, but as a fact, in the aforesaid case, the award was found to be in the nature of settlement in the context and on such factual basis, in the judgment, it was held by the Hon'ble Supreme Court that the award has been validly terminated Page 8 of 10 HC-NIC Page 8 of 10 Created On Sun Sep 24 10:36:45 IST 2017 C/LPA/1419/2017 ORDER before passing the order of reference and the question regarding non-compliance with Section 19(7) was not allowed to be raised on the ground that the same involves the question of fact.
8. Further learned counsel for the appellant has relied on the case of Employers of Thungabhadra Industries Ltd. V/s The Workmen and Another, reported in 1974(3) SCC 167. In the said judgment also, the question that fell for consideration before the Hon'ble Supreme Court was with reference to plea of termination of the award. The Hon'ble Supreme Court has considered whether termination can be presumed from the charter of demand inconsistent with the award, strike or participation in conciliation proceedings regarding such demands and as a fact, it was found that there was no termination of the earlier award in the said case. Having regard to the fact situation and the issue which arise for consideration on the facts of the case on hand, both the said judgments relied upon by learned counsel would not render any assistance in support of his plea.
9. It is needless to observe that there was no such plea of termination before the Industrial Court in Recovery Application filed by the respondent, and also in Special Civil Application Page 9 of 10 HC-NIC Page 9 of 10 Created On Sun Sep 24 10:36:45 IST 2017 C/LPA/1419/2017 ORDER No. 12185 of 2016, such plea is sought to be raised for the first time in this appeal. Even otherwise, we are of the view that there is no error committed in passing of the order by the Labour Court or by the learned Single Judge in dismissing the petition following the earlier order passed by this Court.
10. For the aforesaid, we do not find any merits in the appeals. Accordingly, all the appeals are dismissed. No order as to costs. Consequently, all the Civil Applications stand dismissed.
(R. SUBHASH REDDY, CJ) (VIPUL M. PANCHOLI, J.) Srilatha Page 10 of 10 HC-NIC Page 10 of 10 Created On Sun Sep 24 10:36:45 IST 2017