Laxmi vs State Of Rajasthan
2022 Latest Caselaw 4784 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 4535/2021

Laxman S/o Shri Naniya, Aged About 56 Years, R/o Gamda, Post Office Aabapura, Tehsil Aabapura, Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Engineer, Water Resources Department, Rajasthan.

2. The Additional Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

3. The Executive Engineer, Mahi Dam Division-First, Mahi Project, Banswara, Rajasthan.

4. The Assistant Engineer, Dam Sub-Division Fourth, Mahi Pariyojna, Banswara.

----Respondents Connected With S.B. Civil Writ Petition No. 2602/2021 Moga S/o Shri Nagji, Aged About 59 Years, R/o Kalanal, Post Office Aabapura, Tehsil Aabapura, Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Engineer, Water Resources Department, Rajasthan.

2. The Additional Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

3. The Executive Engineer, Mahi Dam Division First, Mahi Project, Banswara, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 4541/2021 Laxmi W/o Shri Bijiyaji, Aged About 57 Years, R/o Sag Talai, Post Office Sewna, District Banswara , Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Secretary, Water Resources Department, Rajasthan.

2.     The   Additional      Chief       Engineer,            Water   Resources


                                         (2 of 20)                      [CW-4535/2021]


       Department, Udaipur, Rajasthan.

3. The Executive Engineer, Mahi Dam Division - First, Mahi Project, Banswara, Rajasthan.

4. The Assistant Engineer, Dam Sub-Division Fourth, Mahi Pariyojna, Banswara.

----Respondents S.B. Civil Writ Petition No. 4552/2021 Shankar S/o Shri Khemaji, Aged About 60 Years, R/o Mukam Gamda, Post Office Aabapura, Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Engineer, Water Resources Department, Rajasthan.

2. The Additional Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

3. The Executive Engineer, Mahi Dam Division-First, Mahi Project, Banswara, Rajasthan.

4. The Assistant Engineer, Dam Sub-Division Fourth, Mahi Pariyojna, Banswara.

5. The Director, Pension And Pensioners Welfare Department, Government Of Rajasthan, Jaipur.

----Respondents S.B. Civil Writ Petition No. 4644/2021 Kamudi D/o Shri Nankaji, Aged About 57 Years, R/o Dangapara, Post Office Kundla, District Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Engineer, Water Resource Department, Udaipur, Rajasthan.

2. The Additional Chief Engineer, Water Resource Department, Udaipur, Rajasthan.

3. The Executive Engineer, Mahi Dam Division First, Mahi Project, Banswara, Rajasthan.

4. The Assistant Engineer, Dam Sub-Division Fourth, Mahi Pariyojna, Banswara.

                                                                 ----Respondents





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             S.B. Civil Writ Petition No. 4714/2021

Sura D/o Shri Dhanji, Aged About 58 Years, R/o Dangapara, Post Office Badgaon, District Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Engineer, Water Resources, Udaipur, Rajasthan.

2. The Additional Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

3. The Executive Engineer, Mahi Dam Division-First, Mahi Project, Banswara, Rajasthan.

4. The Assistant Engineer, Dam Sub-Division Fourth, Mahi Pariyojna, Banswara.

----Respondents S.B. Civil Writ Petition No. 4715/2021 Kamla D/o Shri Devaji, Aged About 56 Years, R/o Kali Dangri, Post Office Navagaon, District Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

2. The Additional Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

3. The Executive Engineer, Mahi Dam Division - First, Mahi Project, Banswara, Rajasthan.

4. The Assistant Engineer, Dam Sub-Division Fourth, Mahi Pariyojna, Banswara.

----Respondents S.B. Civil Writ Petition No. 4894/2021 Prabhu S/o Shri Nathuji, Aged About 59 Years, R/o Kalanal, Post Office Aabapura, Tehsil Aabapura, Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

2. The Additional Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

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3. The Executive Engineer, Mahi Dam Division - First, Mahi Project, Banswara, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 4982/2021 Laxmi D/o Shri Devaji, Aged About 56 Years, R/o Post Office Sundani, Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

2. The Additional Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

3. The Executive Engineer, Mahi Dam Division-First, Mahi Project, Banswara, Rajasthan.

----Respondents S.B. Civil Writ Petition No. 4988/2021 Kali W/o Shri Kanaji, Aged About 60 Years, R/o Shilabet, Post Office Talwara, Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

2. The Additional Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

3. The Executive Engineer, Mahi Dam Division-First, Mahi Project, Banswara, Rajasthan.

4. The Director, Pension And Pensioners Welfare Department, Government Of Rajasthan, Jaipur.

----Respondents S.B. Civil Writ Petition No. 4989/2021 Rama S/o Shri Bheriyaji, Aged About 61 Years, R/o Post Office Surpur, Banswara, Rajasthan.

----Petitioner Versus

1. State Of Rajasthan, Through The Chief Engineer, Water Resources Department, Udaipur, Rajasthan.

2.    The    Additional      Chief       Engineer,            Water     Resources


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             Department, Udaipur, Rajasthan.

3. The Executive Engineer, Mahi Dam Division-First, Mahi Project, Banswara, Rajasthan.

4. The Director, Pension And Pensioners Welfare Department, Government Of Rajasthan, Jaipur.

                                                                      ----Respondents


      For Petitioner(s)          :   Mr. M.A.Siddiqui.
                                     Mr. Kanish Singhvi.
      For Respondent(s)          :   Ms. Abhilasha Kumbhat.
                                     Mr. Ravi Panwar.


                 HON'BLE MR. JUSTICE ARUN BHANSALI
                                          Order
REPORTABLE

      30/03/2022

These writ petitions have been filed by the petitioners on

9/3/2021 except Writ Petition No. 2602/2021 which has been filed

on 8/2/2021, seeking direction to the respondents to revise pay of

the petitioners while considering their date of initial appointment

and provide them semi-permanent and permanent status w.e.f.

completing 02 years and 10 years from the date of initial

appointment, grant consequential benefits w.e.f. the date they are

made semi-permanent and permanent and grant benefit of

selection grade at the end of 9, 18 and 27 years of service by

considering their date of initial appointment along with arrears and

consequential benefits.

The petitioners, who are very low paid employees working on

the post of Beldar/Coolie with the Mahi project, were appointed in

the 1980s. However, their services came to be terminated by the

respondents, which resulted in the petitioners approaching the

authorities under the provisions of Industrial Disputes Act, 1947

(6 of 20) [CW-4535/2021]

('the Act, 1947'). On a reference being made to the Labour Court,

the same came to be answered in favour of the petitioners -

workmen by award dated 22/3/1999, wherein, they were directed

to be reinstated with 50% back wages. Further direction was given

to consider the services of the workmen as continuous.

The Award dated 22/3/1999 was challenged before this

Court, whereby, the Award came to be modified to the extent that

106 workmen shall be entitled for 50% of back wages from the

date of reference till the date of Award along with interest from

the date of reference.

Against the said judgment of learned Single Judge, cross

appeals were filed before the Division Bench, wherein, the Division

Bench affirmed the judgment of learned Single Judge modifying

the award to the extent that 106 workmen shall be entitled to

50% of back wages from the date of reference till the date of

Award together with interest.

Against the Division Bench judgment dated 19/7/2000,

Special Leave Petition filed by the State before the Hon'ble

Supreme Court came to be dismissed on 29/10/2001.

In the meanwhile, in a writ petition being CWP No.

1921/1999 filed seeking implementation of the Award passed by

the Tribunal, on 20/7/2000 a learned Single Judge directed

implementation of the Award on or before 30/11/2000.

On 29/8/2005 (Annex.5), the Executive Engineer, Mahi Dam

Division - I, Mahi Project, Banswara passed an order based on the

Award as upheld by this Court and an agreement dated 17/5/2005

entered into between the Chief Engineer, Mahi Project and

President, Mahi Shramik Sangh, declaring the workmen as semi-

permanent w.e.f. 1/8/2002 and granting them pay scale of

(7 of 20) [CW-4535/2021]

Rs.2550 - 3200. It was also directed that the workmen would be

entitled to cash benefit w.e.f. 1/1/2005. The order was

accompanied by the Schedule indicating the names of workmen

and considering their date of initial appointment they were

reinstated w.e.f. 1/8/2000 and thereafter, were shown as semi-

permanent w.e.f. 1/8/2002. It appears that, whereafter, at the

end of 10 years from the date of reinstatement they were

conferred permanent status. While few of the employees have

since retired, the petitioners are almost at the fag end of their

service i.e. they are nearing the age of 60 years.

Submissions have been made that the respondent

department against the settled principles of law entered into an

agreement with the Labour Union shifting the date of

reinstatement, which has affected the conferment of semi-

permanent and permanent status.

It is indicated in the writ petitions that one Smt. Balmandi

wife of one of the deceased workman preferred S.B.Civil Writ

Petition No. 19029/2018, which came to be decided on 3/12/2020,

wherein, the respondents were directed to give semi-permanent

and permanent status to the said petitioner's husband in

accordance with the law while reckoning the period from

1/10/1979 (the date of initial appointment) and accord family

pension to the petitioner therein.

The petitioners, apparently, based on the judgment in the

case of Balmandi (supra) sought semi-permanent and permanent

status from the date of their initial appointment. However, as the

same has not been granted, the present writ petitions have been

filed seeking the reliefs as noticed hereinbefore.

(8 of 20) [CW-4535/2021]

A reply to the writ petition has been filed by the respondents

inter alia admitting the date of initial appointment of the

petitioners and subsequent events pertaining to retrenchment,

Award of the Labour court, modification by learned Single Judge,

dismissal of appeals by the Division Bench & SLP by Hon'ble

Supreme Court and a claim has been made that as the petitioners,

who are members of the Labour Union, which entered into an

agreement with the respondents, the date of reinstatement was

taken as 1/8/2000 and semi-permanent status w.e.f. 1/8/2002

and, therefore, the petitioners are not entitled to the benefit of

selection grade from the date of initial appointment. The order in

the case of Balmandi (supra) was distinguished on account of the

fact that the husband of Smt. Balmandi had died before the

agreement was entered into between the respondents and the

Labour Union.

Submissions have also been made that there is delay of over

15 years and on account of unexplained delay, the petitions are

liable to be dismissed.

Learned counsel for the petitioners with reference to the

Award passed by the Labour court and the fact that except for a

minor modification by the learned Single Judge, the same has

been upheld right upto Hon'ble Supreme Court, made submissions

that action of the respondents in granting the semi-permanent

and permanent status based on the purported date of

reinstatement i.e. 1/8/2000 is not justified inasmuch as the labour

court had specifically directed reinstatement from the date of

initial appointment.

Submissions have been made that by way of entering into an

agreement, the respondents could not have varied the Award

(9 of 20) [CW-4535/2021]

passed by the competent court and upheld right upto Hon'ble

Supreme Court. Submissions have also been made that entering

into the agreement is of no consequence and that the respondents

are not entitled to rely on the agreement with a view to violate the

Award as well as directions given by the learned Single Judge of

this Court directing the respondents to implement the Award.

Submissions were also made that the agreement does not

answer the definition of 'settlement' under Section 2(p) of the Act,

1947 inasmuch as in terms of the said definition, a copy of the

agreement has to be sent to an officer authorized in this behalf by

the appropriate Government and the conciliation officer. There is

no reference and/or the case of the respondents that the said

requirement was complied with.

Further submissions were made that the petitioners being

illiterate and belonging to lower strata of the society and that also

belonging to the tribal belt were wholly unaware of the fact that

the action of the respondents in depriving the petitioners of their

rights arising from the Award of the labour court by way of an

agreement Annex.R/1/1 was illegal and only after the issue of

Smt. Balmandi came up before the Court and same was decided in

favour of the petitioner therein and observations were made

pertaining to the status of the agreement, which was set up by the

respondents in the said case also, the petitioners became aware of

their rights and as such have approached this Court soon

thereafter and as such the plea raised pertaining to delay has no

substance.

It was also submitted that the respondents having violated

the Award of the labour court and the directions given by this

Court ordering implementation of the Award, cannot seek to hide

(10 of 20) [CW-4535/2021]

behind the agreement (Annex.R/1/1), which on its face is illegal

inasmuch as the same has deprived the petitioners of their

entitlement of continuity of service from the date of initial

appointment, resulting in loss to them of period ranging from 15

to 20 years which would have cascading effect on their salaries as

well as pensionary benefits and consequently the petitions be

allowed and the reliefs as prayed be granted to them.

Reliance was placed on the judgment in the case of Smt.

Balmandi (supra) and Deetiya vs. State of Rajaasthan & Ors. :

S.B.Civil Writ Petition No. 2487/2006 decided on 7/7/2008.

Learned counsel for the State vehemently opposed the

submissions. It was submitted that entering into the agreement by

the Labour Union on behalf of the petitioners is not disputed,

wherein, it was specifically agreed that the workmen would be

declared semi-permanent w.e.f.1/8/2002 and would be paid actual

benefits w.e.f. 1/1/2005 and that the workmen were prepared to

abandon the difference of salary for the period 1/8/2002 to

31/12/2004. The benefit of selection grade at the end of 9, 18 and

27 years of service would be counted from the date of

reinstatement i.e. 1/8/2000. On the part of the workmen, it was

agreed that they would not raise any dispute before any court in

this regard and, therefore, the reliefs sought being contrary to the

said agreement are not available.

It was submitted that there is no estoppel and/or bar in law

in entering into an agreement after the Award has been passed

and, therefore, the plea sought to be raised has no substance. It

was further emphasized that there is huge delay in approaching

this Court as the agreement was entered into way back in 2005

and implemented thereafter and, therefore, on account of

(11 of 20) [CW-4535/2021]

unexplained delay and laches the petitions are liable to be

dismissed.

Reliance was placed on Federal Mogul Bearing India Ltd. vs.

State of Himachal Pradesh & Ors. : 2012(132) FLR 69, Working

Journalists vs. Management of the "Hindu" : AIR 1961 Madras

370, Automotive & Allied Industries vs. Regional Provident Fund :

1994 (68) FLR 642 and Bahulayan V. & Ors. vs. State of Kerala &

Ors. : 2000 LabIC 2442.

I have considered the submissions made by learned counsel

for the parties and have perused the material available on record.

The petitioners-workmen, who were initially appointed on the

dates as under, as per order Annex.5, as Beldar/Coolie with the

respondents came to be retrenched leading to reference dated

24/5/1995 by the appropriate Government to the Labour court,

Udaipur:

Petitioner Date of Initial Appointment y{e.k iq= Jh ukfu;k 01.11.1984 eksxk iq= Jh uxth 01.10.1984 y{eh ifRu Jh fcft;k th 01.06.1986 "kaadj iq= Jh [ksek th 01.09.1984 deqMh iq=h Jh ukudk th 01.10.1984 lqjk iq=h Jh /kuth 01.05.1984 deyk iq=h Jh nsokth 01.03.1980 izHkq iq= Jh ukFkqth 01.12.1984 y{eh iq=h Jh nsokth 01.09.1981 dkyh ifRu Jh dkukth 01.09.1980 jkek 01.11.1984

The Labour court by its Award dated 22/3/1999 directed as

under:

"iapkV mijksDr okn fcUnq la[;k ,d o nks ds fofu"p; ds vk/kkj ij okn fcUnw la[;k nks esa of.kZr dqy 106 Jfedx.k ftuds uke dh lwph blh fu.kZ; ds i`'B la[;k 19 ls 22 ij vafdr gS ds i{k esa bl U;k;ky;

(12 of 20) [CW-4535/2021]

iapkV }kjk ikfjr fd;k tkrk gS fd ;s Jfedx.k iqu% lsok esa cgkyh ds vf/kdkjh gSA tgka rd cdk;k osru dk iz"u gS bu Jfedx.kksa }kjk U;k;ky; gktk esa vkS|ksfxd fookn vf/kfu;e dh /kkjk 33¼4½¼2½ ds rgr okn la[;k [email protected] fnukad 24-02-1992 dks izLrqr fd;k x;k Fkk bl dkj.k ;g izekf.kr ekuk tkrk gS fd bu Jfedx.kksa }kjk fnukad 24-2-1992 dks U;k;ky; gktk dh "kj.k ys yh Fkh tgka fnukad 24-2-1992 ls iqu% lsok esa cgkyh ds e/; dh vof/k dk vk/kk osru (50% Back wages) izkIr djus ds vf/kdjh gksxsA ;fn foi{kh fu;kstd }kjk iapkV izdk"ku ds nks ekg dh vof/k esa cdk;k vk/kk osru (50% Back wages) dk Hkqxrku ugha fd;k tkrk gS rks izkFkhZ&Jfedx.k bl jkf"k ij 12 izfr"kr okf'kZd dh nj ls C;kt izkIr djus ds vf/kdkjh gksxsA lkFk gh Jfedx.kksa dh lsok,a fujUrj ekuh tk;sxhA blds vykok izkFkhZ&Jfedx.kksa dks foi{kh fu;kstd }kjk okn O;; ds :i;s [email protected]& vfrfjDr vnk djsxkA"

Feeling aggrieved, the State filed writ petition before this

Court, wherein, the learned Single Judge while dismissing the writ

petition filed by the State, modified the Award to the extent that

106 workmen would be entitled to 50% of back wages from the

date of reference till the date of Award together with interest from

the date of reference.

Cross appeals were filed, which came to be decided by

Division Bench inter alia observing as under:

"We have perused the award and the order of the learned Single Judge and also the pleadings. We are satisfied with the order of the learned Single Judge modifying the award as indicated above. There cannot be any serious objections on the part of the workmen also in regard to such modification. No new point has been raised by both the appellants in the respective appeals. In our opinion, the order of the learned Single Judge does not call for any interference. We, therefore, confirm the judgment of the learned Single Judge modifying the award to the extent that the 106 workmen shall be entitled for50% of the backwages from the date of reference till the date of award together with the interest. It is seen from the award that the Tribunal has awarded 12% interest. The same rate of interest shall be paid from the date of reference.

With the above observations, both the appeals stand disposed of."

Against the order of Division Bench, the State went to

Hon'ble Supreme Court, which dismissed the Special Leave

Petition.

(13 of 20) [CW-4535/2021]

In the meanwhile, S.B.Civil Writ Petition No. 1921/99 was

filed seeking implementation of the Award, which came to be

decided on 20/7/2000, wherein, the learned Single Judge inter

alia observed as under:

"This petition is filed for implementation of the impugned award passed by the labour court in favour of the petitioners workmen. Against the impugned award the other side has also filed writ petition before the learned Single Judge of this court which was dismissed. The said order was challenged before the Division Bench by way of special appeal, which was also stated to have been dismissed yesterday only.

In view of the above, the respondents have no defence and they have to implement the impugned award immediately.

However, learned counsel Shri Calla states that in view of the fact that the writ petition filed by them before the learned Single Judge is dismissed and special appeal against that order is also dismissed by the Division Bench, the respondents will implement the award, but they will take at least four months time as huge amount is involved in the matter.

In view of the above, respondents are directed to implement the award on or before 30/11/2000. It is made clear that the time is given to the respondents to make payment of back wages. However, the respondents shall now reinstate the petitioners forthwith and in any case not later than 1.8.2000.

This order is pronounced in the court in the presence of Shri H.N.Calla, therefore, without any ifs and buts the respondents have to comply with this order, failing which appropriate actio will be taken against them. Office is directed to give copy of this order to Mr. P.R.Mehta for the petitioner and Mr. H.N.Calla for the respondents immediately."

It appears that even after passing of the judgment by the

learned Single Judge requiring implementation of the Award, the

State, unwilling to implement the award, ultimately entered into

an agreement with the workmen through the Labour Union on

17/5/2005 (Annex.R/1/1) providing for the conditions for

implementation of the Award, whereby, the date of reinstatement

was taken as 1/8/2000 and workmen were declared semi-

permanent w.e.f. 1/8/2002 and actual benefits w.e.f. 1/1/2005

with further stipulation that for the purpose of selection grade at

(14 of 20) [CW-4535/2021]

the end of 9, 18 and 27 years of service the relevant date would

be 1/8/2000 (date of reinstatement). Based on which, order dated

29/8/2005 (Annex.5) was passed indicating the actual initial date

of appointment, 1/8/2000 as date of reinstatement, 1/8/2002 as

semi-permanent along with the pay scales etc.

A bare look at the agreement indicates that the same is titled

Form H (Rule 58). It has further been indicated that the

agreement has been entered into under the provisions of Section

12(4) of the Act and agreement is signed by President, Mahi

Shramik Sangh, Banswara, Assistant Engineer, Executive Engineer

and Chief Engineer.

The term 'settlement' has been defined under Section 2(p) of

the Act, 1947 as under:

"(p) "settlement" means a settlement arrived at in the course of conciliation proceedings and includes a written agreement between the employer and workmen arrived at otherwise than in the course of conciliation proceedings where such agreement has been signed by the parties thereto in such manner as may be prescribed and a copy there of has been sent to an officer authorised in this behalf by the appropriate Government and the conciliation officer;"

A perusal of the above definition would reveal that a

settlement inter alia means a settlement arrived at between the

employer and workmen otherwise than during the course of

conciliation proceedings where such an agreement has been

signed by the parties thereto in such manner as may be

prescribed and a copy thereof has been sent to an officer

authorized in this behalf by the appropriate Government and the

conciliation officer.

The manner as required by the definition and the officer

authorized in this behalf has been provided for in the Rajasthan

(15 of 20) [CW-4535/2021]

Industrial Disputes Rules, 1958 ('the Rules, 1958'), wherein, Rule

58 (4) provides as under:

"(4) Where a settlement is arrived at between an employer and his workmen otherwise than in the course of conciliation proceeding before a Board or a Conciliation Officer, the parties to the settlement shall jointly send a copy thereof to the State Government and the Labour Commissioner, Rajasthan and to the Conciliation Officer concerned."

The provision requires that the parties to the settlement shall

jointly send a copy of the agreement to the State Government &

Labour Commissioner, Rajasthan and to the conciliation officer

concerned.

Further, the register of settlement has been provided under

Rule 75 of the Rules requiring the conciliation officers to file all

settlements effected under the Act in respect of disputes in the

area within his jurisdiction in a register maintained for the

purpose. The form of register has been provided under 'Form O',

wherein, a specific indication as to whether the settlement was

affected at the intervention of the conciliation machinery or by

mutual negotiations between the parties is required to be

indicated.

The provisions of Rule 2(p), Rules 58 and 75 of the Rules,

1958 clearly reflect that for a settlement arrived at between the

parties by mutual negotiations, the same has to be sent to the

State Government, Labour Commissioner and the conciliation

officer concerned.

The provisions are not without reason, inasmuch as on

account of unequal bargaining power between the workmen and

the management, in case a mutual settlement is arrived at the

same becomes binding under the provisions of Section 18 (1) of

the Act and, therefore, to ensure that the agreement arrived at is

(16 of 20) [CW-4535/2021]

examined by the authority i.e. the Labour Commissioner and the

conciliation officer, the same is required to be sent to them and

entered in the register of settlement maintained by the

conciliation officer.

There is no indication in the agreement and in the reply filed

by the respondents that the agreement in question was ever sent

to the Labour Commissioner, Rajasthan and/or to the conciliation

officer and that the same is entered in the register maintained

under Rule 75 of the Rules, 1958. In absence of compliance of

provisions regarding sending a copy of the settlement to the

concerned, the settlement arrived at between the employer and

the workmen otherwise than in the course of conciliation

proceedings cannot be said to be binding on the parties in terms

of Section 18(1) of the Act, 1947.

The reference to Section 12(4) of the Act, 1947 in the

agreement appears to be wholly baseless as the said provision

deals with consequences to the failure of conciliation proceedings.

It would be seen from the sequence of events as noticed

hereinbefore that the Award was passed way back in the year

1999, the Labour court directed reinstatement with continuity in

service and the workmen, who were in employment prior to their

illegal retrenchment since 1979/1980/1984 based on the said

status were entitled to consequential benefits. However, despite

dismissal of the writ petition, special appeal and Special Leave

Petition, except for a minor modification pertaining to back wages,

the judgment was not implemented besides a specific direction in

another writ petition to implement the same by 30/11/2000 and

after five years by way of an agreement, the respondents decided

to deprive the petitioners of their legitimate dues in terms of the

(17 of 20) [CW-4535/2021]

award by changing the date of their initial appointment to the date

of purported reinstatement i.e. 1/8/2000 and taking the same as

the basis for conferring the semi-permanent status and other

consequential benefits.

The action of the respondents cannot be countenanced under

any circumstance. Once the award was passed and the State by

filing the writ petition got the same modified in relation to back

wages and the cross appeals came to be dismissed along with

Special Leave Petition filed by the State, there was no occasion

whatsoever for the State then to indulge in maneuvering to

deprive the petitioners of their rights under the award passed by

the Labour court. In fact with the modification of the award by the

learned Single Judge, the award as passed by the Labour Court

merged in the order of the High Court and, therefore, the action of

the respondents thereafter amounts to violation of the directions

of the Court as passed in the writ petition and the special appeal,

which cannot be countenanced under any circumstance.

A coordinate bench of this Court, when one Smt. Balmandi,

widow of a workman, who was also beneficiary of the award dated

22/3/1999, approached this Court for her pensionary benefits and

the agreement was sought to be relied on in response, it was inter

alia observed as under:

"19. .......That apart, such agreement is nothing short of exploitation of poor labourers. It cannot be believed that having won till the Supreme Court, the labourers if explained properly would agree to such terms, at their free will and volition.

20. Hence, the petitioner's rights cannot be clipped in the teeth of the agreement dated 08.09.2005.

21. It is shocking to note that the Labour Court had allowed the claim petition of the petitioner's husband and said order with minor modification has been upheld till Supreme Court - the retrenchment of petitioner's husband was held illegal, he was held to be in continuous service way back in the year 1999, yet the State has not

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implemented the award. Order dated 20.07.2000 passed by this Court has been thrown to winds. Petitioner - a tribal widow had to approach this Court.

22. The writ petition is, thus allowed; order dated 21.01.2016 is quashed.

23. The respondents are directed to give semi permanent and permanent status to the petitioner's husband, in accordance with law while reckoning the period from 01.10.1979. They shall also abide by the recommendations made vide communication dated 25.04.2017 and 01.06.2017.

24. Formal order of declaring petitioner's husband semi permanent and permanent and regularisation, in accordance with law, be passed within a period of three months from today."

The observations made are self evident, wherein, the Court

came to the conclusion that it cannot be believed that having won

till the Supreme Court, the labourers if explained properly would

agree to such terms, at their free will and volition and that the

petitioner's rights cannot be clipped by way of an agreement

dated 8/9/2005.

In the case of Deetiya (supra), wherein, on account of an

agreement the pensionary benefits on the ground of voluntary

retirement from service were denied, another coordinate bench of

this Court came to the conclusion that denial of pensionary

benefits was totally contrary to law and unconstitutional.

So far as the reliance placed by learned counsel for the

respondents on various judgments is concerned, none of the

judgments pertain to a case where after the award was passed

and was upheld upto the Supreme Court, thereafter, a purported

agreement was entered into seeking to deprive the workmen of

their rights under the award and, therefore, said judgments have

no application to the facts of the present case.

Coming to the issue of delay on the part of petitioners, from

the facts which have been narrated in the petition, it is apparent

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that on account of the background of the petitioners being

illiterate, tribal and belonging to lower strata of the society and

working as Beldar/Coolie and now in advanced age, the petitioners

apparently being oblivious of the illegality on the part of the

respondents and their rights under the award and only after

passing of the order in the case of Smt. Balmandi becoming aware

of their rights, they immediately approached this Court.

In view thereof, in the peculiar facts and circumstances of

the case, the petitions cannot be thrown out on account of alleged

unexplained delay and laches. However, for balancing the

equities, the actual benefit available to the petitioners can be

restricted for three years from before the filing of the writ

petitions.

Consequently, the writ petitions filed by the petitioners are

allowed. The petitioners are entitled for the benefits of their

continuity in service in terms of the Award dated 22/3/1999 from

the date of their respective initial date of appointment as indicated

in Annex.5 to the writ petition and as indicated hereinbefore. The

action of the respondents in granting benefits from the alleged

date of reinstatement i.e. 1/8/2000 by order dated 29/8/2005

(Annex.5) is quashed. The petitioners would be entitled to semi-

permanent and permanent status from the date of their initial

appointment along with the benefit of selection grade on

completion of 9, 18 and 27 years of service in accordance with

law, which would also be reflected in their entitlement to salary

and/or pension. After calculating all the benefits available to the

petitioners based on the above directions, the petitioners would be

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entitled to the actual monetary benefits w.e.f. three years prior to

filing of the respective writ petitions.

The entire exercise be done by the respondents within a

period of six weeks and the arrears of monetary benefits be

accorded to the petitioners within a period of four weeks

thereafter and continue to pay the benefits to the petitioners in

accordance with law.

No order as to costs.

(ARUN BHANSALI),J baweja/-

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