The vs Lataben on 11 September, 2008

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Gujarat High Court

The vs Lataben on 11 September, 2008

The petitioner, Thangadh Nagarpalika, through its chief Officer has approached this Court challenging award dated 3-4-2002 passed by the Labour Court, Surendranagar in Reference (LCD) 23 of 2000 on the basis of duly approved consent terms signed by all the competent parties duly authorised to sign consent terms and also challenges order dated 6-4-2006 passed by the Labour Court, Surendranagar, rejecting review application for modification and or revoking award dated 4-4-2002 which was passed upon consent terms.

The facts, in brief, deserve to be set out in order to appreciate the controversy in the present petition.

The respondent No.1, lady, working in Nagarpalika at the relevant time, had raised industrial dispute seeking reinstatement with full back wages and claiming regularization in service which was referred to the competent Court being Labour Court, Surendranagar, which came to be numbered as Reference (LCD) 23 of 2000. In the said reference, the parties passed up a pursis in the form of consent terms duly signed by the respective parties as the compromise was arrived at by the respective parties in Lok Adalat after due deliberations. The pursis dated 3-4-2002 had been pased up, copy is produced on record wherein it was agreed that in view of the General Body Resolution of Nagarpalika dated 30-12-1999 as the work of respondent No.1 was within the set up and as she was decided to be regularized, she was to be made permanent with effect from 1-3-1999. It was also mentioned therein that in that set up the post was sanctioned from 1-4-63 and respondent No.1 gave up claim for arrears and the period from 1-3-90, i.e., date from which she was regularized as employee till the date of compromise was to be treated as notional. Both the parties sought award in terms of aforesaid compromise and consent terms. Labour Court accordingly recorded the same and passed award on 3-4-2002 which is impugned in the present petition.

The respondent No.1, however, had not been given the benefits as directed under the award. She had to move writ petition being Special Civil Application No.2467 of 2005 for seeking appropriate directions to the present petitioner for duly complying with the awrd dated 3-4-2002. During hearing of that petition, present petitioner who happened to be respondent in the aforesaid petition, took up the stand that there was no vacant post of sewing teacher as per the sanctioned set up to regularize the respondent and only one sanctioned post of sewing teacher in Mahila Mandal run by Samad Thangadh Nagarpalika had been occupied by one Ms. Kusumben Andodariya since 1996, who is senior and more eligible to the present respondent in the aforesaid petition. But, it was not brought to the notice of Labour Court and they were not in a position to regularize the services of respondent herein. This Court (Coram : Mr. M.R.Shah, J.) with order dated 5-7-2007 disposed of the matter making following observations :-

?SIt is required to be noted that at present there is judgment and award in favour of the petitioner and against the respondent, which is not disturbed till today. The appropriate remedy for the respondent would be either to file appropriate review application before the Labour Court pointing out the aforesaid facts and to recall the consent award. However, unless and until, the consent award is disturbed or modified, the respondents are bound to comply with the consent award. Under the circumstances, the respondents are granted six weeks time to comply with the consent award in question. However, during the said period, it will be open for the respondent to move an appropriate application before the Labour Court, Surendranagar, and to point out the facts which are stated in the present petition. It will be open for the respondent to pray for interim relief also. As and when such application is made, the same shall be dealt with in accordance with law and on merits. If no order during the said perod of six weeks is obtained, and the consent judgment and award is not challenged and/or modified and/or not stayed, the respondents are directed to comply with the consent award passed by the Labour Court, Ahmedabad in Reference (LCD) No.23 of 2000 dated 3-4-2002.??

The petitioner preferred Review Application No.1 of 2005 before the Labour Court, Surendranagar, pointing out the difficulties in regularizing services as ordered and prayed for review and recalling of the award. The learned Labour Court did not grant review application and rejected the same with its order dated 26-4-2006. The said order is also impugend in the present petition under Art. 227 of the Constitution of India.

Mr. D.P.Vyas, learned counsel for the petitioner, submitted that the review application has wrongly been rejected by the Labour Court and, in fact, the award dated 3-4-2002 ought to have been revoked in view of the fact that consent terms were dehors of the provisions of law in respect of regularizing services of such employee and, therefore, on that count also the consent terms cannot be said to be in accordance with law, and therefore, the Review Application deserves to be allowed. In the alternative, without prejudice to the aforesaid contention, Mr. Vyas further submitted that independent of the observations of the Court in review application in the order made by Labour Court, the petitioners have right to challenge the award dated 3-4-2002 before this Court. Mr. Vyas further submitted that the set up on the date, does not envisage any post which could be offered or the respondent can be regularalized. Mr. Vyas further submitted that the post of sewing teacher in Mahila Mandal has not been abolished, however on that post one employee, viz., Ms. Kusumben Anondariya has been working and at his instance, this Court with order dated 1-2-2008 allowed to be joined as party, accordingly notice was issued to her and she has been served, however she has not chosen to file any appearance.

Mr. Vyas submitted that the post originally was adhoc post and, therefore, there ought not to have been any consent in regularization as it appears to be termed by the then Chief Officer of Nagarpalika. At the same time, Mr. Vyas candidly and fairly submits that no fraud or fradulent practice has been committed, however it has been specifically averred in the petition that the Chief Officer ought not to have signed the consent terms even if there was Resolution of Nagarpalika. He submits that in view of this, award dated 3-4-2002 deserves to be quashed. Nagarpalika is running into losses and is unable to shoulder financial burden of regularalization of the respondent. The length of service alone is not the criteria taken into consideration in ordering regularization. It is legnth of service of respondent No.1 which ought not to have been regularlized at all.

Mr. Mishra, learned advocate appearing for respondent No.1, vehemently opposed this petition. Mr. Mishra submitted that it is not open to Nagarpalika and Chief Officer to approach this Court under Art.227 of the Constitution of India by challenging consent award dated 3-4-2002. Mr. Mishtra submitted that Nagarpalika did not bother to challenge the award dated 3-4-2002 on any count and simply sat tight over the award without complying with the same. The conduct of Nagarpalika and its Chief Officer before this Court deserves to be viewed in its appropriate perspective especially when consent terms which is now in the year 2007-2008, is said to be dehors the law, have not been assailed in any fashion before any forum till respondent No.1 filed the petition being Special Civil Application No.2467 of 2005 in the year 2005 and for the first time in the year 2005 by way of contention on the part of respondent, those grounds were raised. Even before this Court in the aforesaid petition, respondent-present petitioner could not successfully maintain their stand with regard to any illegality in consent terms. However, mere reserving liberty to take appropriate action for rectifying so called mistake also has not been culminated in their favour. When they failed in review, they were duty bound to comply with the award as even in order dated 5-7-2005 made in the petition by this Court (Coram : Mr. M.R.Shah, J.) it is specifically directed that Nagarpalika shall comply with the order and/or challenge the same within stipulated time mentioned therein. The review application, thereafter, was filed which came to be rejected on 6-4-2006. The petitioner has not explained as to why the award was not challenged nor has it been shown as to why it took 20 months time in challenging the award. Mr. Mishra vehemently submitted that the time taken in filing review application and decision thereon also cannot be said to be the time spent which deserves to be given set off in view of the decision of Hon'ble Apex Court in the case of Kapra Mazdoor Ekta Union vs. Birla Cotton Spinning and Weaving Mills Ltd., reported in (2005) 13 SCC 777. Thus, this Court granted them liberty to take appropriate action, meaning thereby at least by that time they could have challenged the award itself before the High Court and time taken in review ought not to have been spent which, therefore, is the time which shall not be taken into consideration for giving set off. Mr. Mishtra further submitted the scope of Art.227 of the Constitution of India, does not permit petitioner to take up the contentions which ought to have been taken before the concerned Court when reference was being decided. At the same time, Mr. Mishtra submitted that the post as it is clearly mentioned in the consent terms, was sanctioned way back in the year 1963 and now in this petition also the petitioner has not come out with clear facts as to how respondent No.1 could not regularized. In view of this, it is submitted that the petition deserves to be dismissed with costs.

This Court has heard learned advocates for the parties at length. Before considering the rival contentions of the advocates, the following undisputed facts deserve to be stated : 1) The respondent No.1 had to raise industrial dispute in respect of her termination and for seeking relief of reinstatement and back wages. The competent appropriate Government, i.e., State Government in this case through its competent officer referred the matter to the competent authority, i.e., Labour Court for its adjudication in accordance with. This dispute came to be numbered as Reference (LCD) 23 of 2000.

2) The reference was before the competent Court and both the parties were absolutely at liberty to lead requisite evidence and submit their respective stand and lead further evidence in support thereof.

3) General Body of Nagarpalika has passed Resolution No.15 referred in consent terms in the year 1990 itself, for according benefits of regularlization to respondent No.1 wherein it is mentioned that the post in Nagarpalika existed since 1963. The competent officer could have passed up appropriate action and signed consent terms being Chief Officer, who has signed consent terms along with his seal which was nothing but reflection of general body resolution. Thus, general body and Chief Officer both after due deliberation decided to accord benefits of regularization from the appropriate date as respondent No.1 had given up her claim for arrears. Learned Labour Court has merely passed an award as per consent terms as can be evidently seen from the award as well as consent terms placed on record. It is reiterated at the costs of repetition that those consent terms speak availability of the post since the year 1963 and nowhere it is stated as to what was the handicap in regularizing the respondent No.1.

4) The award is dated 3-4-2002 and respondent No.1, according to that award and consent terms, was to get the benefit of regularalization since 1-3-99 and actual benefit from 3-4-2002, i.e., the date of compromise and consent terms of award.

5) Nagarpalika-petitioner did not do anything except reinstating the petitioner. They did not grant any benefits as envisaged under the consent terms and award impugned in this petition, nor did Nagarpalika challenge the award before any forum nor had it filed any corrective petition or application before any forum, if at all it was not permissible as it is sought to be made out in this petition.

6) Nagarpalika not only did not challenge the award in any forum but did not comply with the same and took up stand before this Court in their capacity of respondent in Special Civil Application No.2467 of 2005 which was filed by respondent No.1 seeking compliance with the order. Even during hearing of this petition, Nagarpalika could not convince this Court for taking any contrary view except obtaining some time, i.e., six weeks time for either filing corrective petition, i.e., Review Applciation or for complying or challenging the award. The said order dated 5-7-2005 is containing direction also to the petitioner to comply with the order and/or take up appropriate proceeding stipulated within time mentioned therein.

7) The petitioner filed Review Application as stated above and the same came to be dismissed or rejected on 26-4-2006. Thereafter, for the reasons best known to Nagarpalika-petitioner, no steps were taken either to comply with the award or to challenge the award before appropriate forum and the matter kept on pending and respondent No.1 did not get any fruits of her litigation. Ultimately on 5-12-2007 after period of 20 months this petition came to be filed challenging the award dated 3-4-2002 as well as the order in Review Application dated 26-4-2006.

Against this back drop of events, the rival contentions of learned Counsels need to be examined.

This Court is constained to record that even in the petition, the petitioner have not shown as to under which provision of law, Nagarpalika was not empowered to make appropriate resolution awarding benefits nor has it been pointed out that under which provision of law, consent terms can be said to be contrary to the provision of law. One may appreciate that there can be any requirement of obtaining any sanction or approval from concerned authorities under which Nagarpalika is functioning. The petitioner merely under the submission of consent being contrary to law, cannot be permitted to defeat the award and respondent No.1 has right to reap fruits thereunder. Collector's order is pressed into service for defeating the right of respondent No.1 to take benefits of award, is absolutely misplaced, misconceived and deserves to be rejected as from the face of it, it appears that Collector has not taken into consideration the correct position of law nor has he taken into consideration the observations made by this Court in Special Civil Application No.2467 of 2005 in its order dated 5-7-2005. Therefore, reliance upon the Collector's order is of no avail to the present petition. The petitioner have chosen not join the Collector or State as party respondent in the present proceeding. Therefore, it would not be appropriate for ths Court to ascertain anything from the State in this behalf. Suffice it to say that the petitioner failed to point out as to how consent terms were contrary to law and not capable of being complied with. The Court under Art.227 of the Constitution of India, has its well defined limitation wherein issues with regard to sanction of post, non-sanction of post, availability of vacancy, qualification of candidates are not to be looked into when those things have not been pleaded or adjudicated upon by the Court of first instance whose orders are under challenge before this Court. After the judgment was over, guidelines dated 3-8-2004 is pressed into service. Suffice it to say, that even if guidelines did not permit any consent terms, guidelines are issued on 3-8-2004 and naturally, therefore, it cannot have any applicability when consent terms were filed. Therefore, these guidelines are of no use whatsoever. Suffice it to say that the petition being devoid of merits, deserves to be dismissed and accordingly, it is dismissed. However, there shall be no order as to costs.

(S.R.BRAHMBHATT, J.) vijay* Top

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Gujarat High Court