Gujarat Water Resources ... vs State Of Gujarat
2021 Latest Caselaw 10049 Guj

     C/SCA/2039/2010                              JUDGMENT DATED: 30/07/2021




             IN THE HIGH COURT OF GUJARAT AT AHMEDABAD

               R/SPECIAL CIVIL APPLICATION NO. 2039 of 2010


FOR APPROVAL AND SIGNATURE:


HONOURABLE DR. JUSTICE A. P. THAKER                  Sd/-

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1     Whether Reporters of Local Papers may be allowed                 No
      to see the judgment ?

2     To be referred to the Reporter or not ?                          Yes

3     Whether their Lordships wish to see the fair copy                No
      of the judgment ?

4     Whether this case involves a substantial question                No
      of law as to the interpretation of the Constitution
      of India or any order made thereunder ?

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GUJARAT WATER RESOURCES DEVELOPMENT CORPORATION LTD., &
                         3 other(s)
                          Versus
               STATE OF GUJARAT & 25 other(s)
================================================================
Appearance:
MR DG CHAUHAN(218) for the Petitioner(s) No. 1,2,3,4
MR MUKESH H RATHOD(2432) for the Respondent(s) No.
1,10,11,12,13,17,4,7,8
RULE SERVED(64) for the Respondent(s) No.
1,10,11,12,14,15,16,17,18,19,2,20,21,22,23,24,25,26,3,4,5,6,7,8,9
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    CORAM:HONOURABLE DR. JUSTICE A. P. THAKER

                            Date : 30/07/2021
                            ORAL JUDGMENT

1. Present petition has been filed by the petitioner under Articles 226 and 227 of the Constitution of India challenging the award dated 2.1.2010 passed by the Presiding Officer, Labour Court, Kachchh at Bhuj, in Recovery Application No.2 of

C/SCA/2039/2010 JUDGMENT DATED: 30/07/2021

2008, whereby the present petitioner has been directed to deposit the amount of Rs.1,27,45,299/- plus interest of Rs.1,03,23,619/- in all Rs.2,30,68,589/-. The reliefs sought for by the petitioners are as under:-

"18. The petitioners, therefore, pray that-

(A) Your Lordships be pleased to issue a writ of mandamus and/or writ of certiorari and/or any other appropriate writ, order or direction in the like nature to quash and set aside the impugned Award and directions dated 2-1-2010 passed by the Presiding Officer, Labour Court, Kachchh at Bhuj in Recovery Application No.2 of 2008.

(B) Your Lordships be pleased to issue a writ of mandamus and/or any other writ, order or direction in the like nature to quash and set aside the Notification No. KH-R-258/IDA-1082-11862 (A)-(j)JH dated 21-4-1982 issued by the State Government in exercise of powers conferred by Section 39 of the Industrial Disputes Act, 1947 as unconstitutional and ultra vires the provisions of Section 33-C (1) of the Industrial Disputes Act, 1947.

(C) Pending the hearing and final disposal of this petition, Your Lordships be pleased to stay the operation, execution and implementation of the impugned Award and direction dated 2-1-2010 passed by the Presiding Officer, Labour Court, Kachchh at Bhuj in Recovery Application No.2 of 2008.

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(D) Pending the hearing and final disposal of this petition, Your Lordships be pleased to stay the operation of the Notification No. KH-R-258/IDA-1082-11862 (A)-(j)JH dated 21-4-1982 issued by the State Government in exercise of powers conferred by Section 39 of the Industrial Disputes Act, 1947.

(E) Your Lordships be pleased to pass other and further orders as may be deemed just and proper in the interest of justice."

2. The brief facts of the case are that the respondents herein were engaged as daily wager Tube-well Operators and they were being paid minimum wages as fixed by the State Government and on completion of five years, they were given the benefits of Government Resolution dated 17.10.1988. After accepting the same, the respondents preferred Special Civil Application No.1644 of 1997 praying for the benefits of minimum pay scale from the initial date of appointment and also claimed benefits under Government Resolution dated 17.10.1988 and they have also prayed to treat them as regular employees after completion of three years' service and grant them all consequential benefits with 18% interest.

2.1 The Honourable High Court has granted said prayer and directed the petitioner herein to pay minimum pay scale to the respondents on completion of three years continuous service and further directed to pay arrears. On the basis of this order, the respondents filed Recovery Application No.2 of 2008 before the Labour Court, Kachchh at Bhuj, under Section 33-C (1) of the Industrial Disputes Act and claimed benefits on the basis of

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order dated 11.9.2002 passed in Special Civil Application No.1644 of 1997. On the basis of the material placed on record, ultimately, the Labour Court has granted prayer of the respondents herein.

3. The main contention of the petitioner is that the order of learned Single Judge has been challenged by filing Letters Patent Appeal No.4 of 2010 and as there was challenge to the order of learned Single Judge, the Labour Court ought not to have granted the prayer of the respondents herein. It is also contended that the order passed by the Labour Court, Kachchh at Bhuj, is under complete misconception of law and facts on record and it has been passed mechanically. It is also contended that when the respondents have received benefits under Government Resolution of 17.10.1988, they ought not to have filed Recovery Application. It is also contended that the respondents have been granted benefit of said Government Resolution and, therefore also, the Recovery Application ought not to have been allowed. It is also contended that Recovery Application was filed after more than six years and this gross unexplained delay of six years ought to have been taken into consideration by the Labour Court and Recovery Application is not maintainable only on this ground. While referring to various provisions of the Industrial Disputes Act, it is contended that the Labour Court has not considered various provisions of the Act and has committed serious error of facts and law in granting prayer of the respondents. It is also contended that Letters Patent Appeal filed against the order of learned Single Judge is pending. On all these grounds, it is prayed to allow present petition by setting aside the impugned order passed on Recovery Application by the Labour Court.

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4. Heard Mr.D.G.Chauhan, learned advocate for the petitioners and Mr.M.H.Rathod, learned advocate for the respondents through video conferencing.

5. Mr.Chauhan, learned advocate for the petitioners has vehemently submitted the same facts, which are narrated in the memo of petition. He has submitted that now Letters Patent Appeal No.4 of 2010 has been decided on 5.3.2014, whereby order of learned Single Judge passed in Special Civil Application no.1644 of 1997 has been set aside. According to him, since the order of learned Single Judge has been set aside, no reliance could be placed upon that decision. According to him, for filing Recovery Application under Section 33-C (1) of the Industrial Disputes Act, there must be some pre-existing rights, whereas in the present case, there is no such pre-existing right. He has also contended that the Labour Court has not considered various defences raised by the petitioners in Recovery Application. He has also submitted that without any authority or jurisdiction, the Labour Court has passed the award in favour of the workmen, which is not in consonance with well settled principles of law. He has further submitted that there is gross delay of six years in filing Recovery Application and there is no explanation worth the name for such delay. According to him, there is no justiciable right in favour of the workmen and they could not have claimed the aforesaid amount as they have already enjoyed the benefit of Government Resolution dated 17.10.1988. He has prayed to allow present petition by setting aside the impugned award passed in Recovery Application by the Labour Court. He has relied upon decision of Division Bench of this Court dated 5.3.2014 in Letters Patent Appeal No.436 of 2006

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in Special Civil Application No.948 of 1993 with allied matters, one of which is Letters Patent Appeal No.4 of 2010 in Special Civil Application No.1644 of 1997, in the case of Gujarat Water Supply and Sewerage Board v. Harkantbhai K. Vyas and 2 others.

6. Per contra, Mr.Rathod, learned advocate for the respondents has submitted that as per the order of learned Single Judge passed in Special Civil Application No.1644 of 1997, benefits of regularization and grant of minimum pay scale after completion of 3 years were granted in favour of the workmen and, therefore, on the basis of that judgment, learned Labour Court has passed the award in Recovery Application, which cannot be said to be perverse. He has submitted that the rights have accrued in favour of the workmen due to order dated 11.9.2002 passed by learned Single Judge of this Court in Special Civil Application No.1644 of 1997and said order of learned Single Judge was not stayed. Therefore, according to him, the Labour Court has taken into consideration these aspects and passed the impugned award. He has submitted that after passing of the award, order has been passed in Letters Patent Appeal No.436 of 2006 and allied matters. He has submitted that it is also required to be verified as to whether benefits under the Government Resolution dated 17.10.1988 have been given to the workmen or not. According to him, let the petitioners clarify as to whether such benefits of Government Resolution dated 17.10.1988 have been granted to the workmen or not. He has submitted that the petition is devoid of merits and it may be rejected.

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7. In rejoinder, Mr.Chauhan, learned advocate for the petitioners has submitted that Government Resolution dated 17.10.1988 has been fully implemented and the workmen are getting all the benefits flowing therefrom. He has submitted that relevant material has been placed in the present petition showing that Government Resolution dated 17.10.1988 has been fully complied with.

8. Having considered the contentions raised by both sides and the material placed on record as well as the impugned award, it is admitted fact that there is no dispute with regard to relationship of employer-employee between the parties. It is also undisputed that by an order dated 11.9.2002 passed in Special Civil Application No.1644 of 1997, learned Single Judge of this Court has granted minimum pay scale in favour of the workmen after completion of three years of continuous service. It is also undisputed fact that there was no stay granted against the order of learned Single Judge passed in Special Civil Application No.1644 of 1997 on 11.9.2002. It is also undisputed that the respondents herein have preferred Recovery Application No.2 of 2008 on 25.9.2008, wherein the impugned order has been passed by learned Labour Court on 2.1.2010.

9. On perusal of the material placed on record, it is crystal clear that the order of learned Single Judge was passed in the year 2002 and after passing of almost six years, Recovery Application has been moved in the year 2008. However, so far as submission made by Mr.Chauhan with regard to delay is concerned, it is well settled that Limitation Act does not apply to the industrial dispute. The workman needs to place on

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record the reasons for delay occurred in filing reference or recovery application.

10. Be that as it may, while setting aside the order of learned Single Judge passed in Special Civil Application No.1644 of 1997, Division Bench of this Court in Letters Patent Appeal No.436 of 2006 and allied matters has observed as under:-

"13. The State Government after considering various aspects and grievances of daily rated unskilled, semi skilled and skilled labourers working with various departments of the State came up with resolution dated 17.10.1988 which was based upon a 2 (p) settlement arrived at between the parties. The parties to the settlement which included various Unions of daily wagers had accepted all the terms and conditions of the settlement. The original petitioners are therefore bound by the resolution dated 17.10.1988."

11. In this case, the workmen have been extended the benefit of Government Resolution dated 17.10.1988, and material in support thereof has been placed on record by the petitioners, which is not controverted by the workmen. Since the order of learned Single Judge passed in Special Civil Application No.1644 of 1997 has been set aside, entire proceedings filed by the workmen under Section 33-C (1) of the Industrial Disputes Act does not survive. Reliance placed by the Labour Court on the decision of learned Single Judge for allowing Recovery Application may be justified at the relevant time, however, as the order of learned Single Judge is set aside by Division Bench of this Court, the very basis of the impugned order does not survive.

12. In view of aforesaid facts and circumstances of the case, present petition is liable to be allowed. Accordingly, this

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petition is allowed. Impugned award dated 2.1.2010 passed by the Presiding Officer, Labour Court, Kachchh at Bhuj, in Recovery Application No.2 of 2008 is set aside and Recovery Application filed by the workmen stands rejected. Amount, if any, deposited by the petitioner herein before this Court or before learned Labour Court be refunded to it. Rule is made absolute accordingly. No order as to costs.

Sd/-

(DR. A. P. THAKER, J) R.S. MALEK