IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 10439 of 2009 With SPECIAL CIVIL APPLICATION No. 10440 of 2009 To SPECIAL CIVIL APPLICATION No. 10450 of 2009 For Approval and Signature:
HONOURABLE MR.JUSTICE M.R. SHAH =========================================
========================================= SOLANKI TUSHAR M & 11 Petitioner(s) Versus KANDLA PORT TRUST & 4 Respondent(s) ========================================= Appearance :
MS RUJUTA R OZA for Petitioner(s) : 1 12. MR DHAVAL D VYAS for Respondent(s) : 1 2. MR PS CHAMPANERI for Respondent(s) : 3, 5, MS ARCHANA U AMIN for Respondent(s) : 4, ========================================= CORAM : HONOURABLE MR.JUSTICE M.R. SHAH Date : 19/04/2012 COMMON CAV JUDGMENT [1.0] As common question of law and facts arise in this group of petitions, they are disposed of by this common judgment and order. All these petitions under Article 226 of the Constitution of India have been preferred by the respective petitioners – employees of respondent No.1 – Kandla Port Trust basically making a grievance against respondent No.1 Kandla Port Trust which is a public undertaking of not implementing the settlement dated 08.08.2005 arrived at between the petitioner Union and respondent No.1 Kandla Port Trust under Section 12(3) of the Industrial Disputes Act, 1947 (hereinafter referred to as “ID Act”) in its true spirit and totality. It is also further prayed to direct respondent Nos.1 and 2, their subordinate officers, servants to regularize services of the petitioners in the cadre of Junior Engineer (Civil) against available vacancy with effect from from the date of creation of such vacancy and offer all other consequential and incidental benefits thereto to the petitioners.
[1.1] It is also further prayed to direct respondent Nos.1 and 2 to confer status of temporary employee and grant of consequential and incidental benefit thereto upon the left out petitioners and their incumbents who are not regularized due to nonavailability of the clear vacancy and awaiting in turn in the matter of their regularization.
[1.2] It is the case on behalf of the petitioners that all the petitioners – incumbents possessed all statutory eligibility prescribed by the Board of Trustees of the Kandla Port (hereinafter referred to as “respondent Port Authority”) for appointment to the post of Sub Engineer (Civil) [now Junior Engineers (Civil)] and were registered with the local employment exchange at the relevant time.
[1.3] It is the case on behalf of the petitioners that the respondent Port Authority made recruitment of 26 incumbents, including the petitioners – incumbents, for appointment to the post of SubEngineer (Civil) after following due process of selection prescribed under Kandla Port Employees (Recruitment, Seniority and Promotion) Regulations, 1964. The respondent Port Authority made the said recruitment by notifying vacancies and calling the names of eligible candidates from the District Employment Exchange and other District Employment exchanges as well as from service eligible candidates. Thereafter, it had constituted selection committee as per Kandla Port Employees (Recruitment, Seniority and Promotion) Regulations, 1964, conducted written test and personal interviews and prepared list of suitable candidates recommended by the selection committee for appointment to the post of SubEngineer (Civil). Subsequently, the said list was approved by the Chairman of the Kandla Port Trust, who is the competent authority to make appointment under Section 24 of the Major Port Trust Act read with regulations made thereunder.
[1.4] It is further case of the petitioners that the respondent Port Authority required all the selected candidates including the petitioners – incumbents to undergo medical fitness examination and thereafter issued appointment order dated 28.11.1998 under the signature of the Chief Engineer, Kandla Port Trust. The said adhoc appointment though made for stipulated 90 days, while endorsing copy thereof to the Executive Engineer, he was instructed to forward proposal, before 15 days of completion of 90 days of tenure, for making fresh appointment of the petitioners – incumbents.
[1.5] It is also further case on behalf of the petitioners that the petitioners – incumbents though were recruited for appointment on the temporary vacancy in the cadre of SubEngineer (Civil), were given ad hoc appointments by following practice prevalent and adopted by the respondent Port Authority to initially appoint on adhoc basis and thereafter regularize their services in the respective cadre. This is evident from the illustrative case of Smt. Sunita R. Panjwani, one of the recruitee from amongst 26 incumbents, she was initially given adhoc appointment by order dated 13.11.1998 for stipulated period of 90 days likewise the petitioners – incumbents, and was subsequently regularized in service as SubEngineer by order dated 01.03.2001. The respondent port authorities adopted similar practice even while making appointments to the other cadre post such as Sainik, Junior Clerk, Junior Engineer etc., wherein initial appointment was given on adhoc basis which was subsequently regularized in due course of time by the port trust authorities.
[1.6] It is also the case on behalf of the petitioners that the respondent Port Authority deviated from its practice and did not regularize services of adhoc SubEngineers (Civil) even after lapse of more than three years, the petitioner union served strike notice with the demand for regularization of services of SubEngineer / Junior Engineers, as per the existing procedure. The matter was seized in conciliation and both the parties in presence of the Conciliation Officer agreed to settle the issue amicably by drawing a Memorandum of Settlement dated 26.06.2003 whereunder the management agreed that they will regularize the services of SubEngineers / Junior Engineers who were on adhoc basis against the available regular schedule vacancies (except in the vacant posts created for project) as per existing procedure. The said settlement is implemented with approval of the Chairman of the Kandla Port Trust and by order dated 10.03.2004 services of 8 adhoc SubEngineers (Civil), from amongst the above referred recruitees, are regularized against the clear vacancy under the set up of the Kandla Port Trust. It is also further case on behalf of the petitioners that however, the respondent Port Authority did not filled in all available regular vacancies and continued to treat the remaining SubEngineers (Civil) on adhoc basis, which gave raise to an industrial dispute by the petitioner union. The matter was taken up with the management of the Kandla Port Trust and after protracted discussions and persuasion in presence of Conciliation Officer, both the parties agreed to settle the dispute by drawing Memorandum of Settlement dated 08.08.2005 under Section 12(3) of the ID Act, the terms of the said settlement reads as under:
[i] The looking into the vacancy position and Roster, the Senior Junior Engineers (Civil) working on Temporary / Adhoc basis against project / regular vacant posts in KPT will be regularized within two months against the existing vacancies.
[ii] That the left over Junior Engineers (Civil) working on temporary / Adhoc basis in KPT against project / regular posts will be given temporary status and they will also be regularized as and when there will be vacancy on regular basis, as per roster”.
The above settlement dated 08.08.2005 (hereinafter referred to as “the subject settlement”) has been signed by the officers representing the management of Kandla Port Trust under authority given by the Secretary of the Kandla Port Trust on 15.04.2005 and the General Secretary representing the petitioner union in presence of the Conciliation Officer.
[1.7] It is further case on behalf of the petitioners that the respondent Port Authority with approval of the Chairman of the Kandla Port Trust by order dated 21.10.2005 regularized services of 2 more Sub Engineers (Civil) from amongst 26 recruitees, who were working on ad hoc basis. Further, the said authority has with approval of the Chairman of the Kandla Port Trust by order dated 22.09.2005 conferred status of temporary appointment to the petitioners – incumbents, who were left over Junior Engineers (Civil) working on temporary / Adhoc basis in KPT against project / regular posts. Thus, the respondent authority implemented the subject settlement in part. In view of conferment of temporary status, the petitioners – incumbents were permitted to hold the posts without any break in service and were given other service benefits at par with regular appointee to the post of SubEngineer (Civil). The petitioner Nos.2 and 11 were also given increment, special increment, medical facilities etc. while holding post under temporary status.
[1.8] It is the case on behalf of the petitioners that the respondent authority did not implement the subject settlement even though clear vacancies to the post of SubEngineer (Civil) were available. On the contrary, by order dated 09.10.2007, the temporary status conferred upon the petitioners – incumbents was withdrawn and they were given appointment again on adhoc basis in clear defiance of terms of the subject settlement. The respondent Port Authority has also withdrawn all the facilities extended to the petitioners – incumbents and also claimed recovery increments given to them during period for which they were holding temporary status in service.
[1.9] It is the case on behalf of the petitioners that since the respondent authority did not implement the subject settlement by regularizing services of the petitioners – incumbents against available clear vacancies, the petitioner union made several representations to the respondent Port Authority as well as the respondent Assistant Commissioner of Labour (Central), who was conciliation officer and in whose presence, the subject settlement was arrived at between the petitioner union and the management of the Kandla Port Trust. The Assistant Commissioner of Labour (Central), Adipur, taking note of representations addressed letter to the respondent Port Authority requesting to implement the settlement without any delay. However, the respondent Port Authority did not pay any heed to the request of the Assistant Commissioner of Labour and in the circumstances the said officer has issued notice dated 30.07.2009 addressed to the Chairman of the Kandla Port, by name, requiring him for nonimplementation of the subject settlement. The respondent Port Authority has by letter dated 10.08.2009 addressed to the Assistant Commissioner of Labour (Central), Adipur admitted its obligation to abide by the subject settlement in its true spirit without violating the instructions / guidelines issued by the Government of India and thereupon requested to grant 3 months time to enable the Port Authority to take necessary steps in the matter of implementation of the settlement. However, as the respondent Port Authority has not taken any positive steps to implement the aforesaid settlement which has been entered into under Section 12(3) of the ID Act, the respective petitioners have preferred the present Special Civil Applications for the aforesaid reliefs.
[2.0] Shri R.J. Oza, learned counsel appearing on behalf of the respective petitioners has vehemently submitted that the settlement dated 08.08.2005 has been signed before the conciliation officer by the representative of the Kandla Port Trust under specific authority given by the Secretary of the Kandla Port Trust. Therefore, the terms of the said settlement is binding on the respondent Port Authority considering Rule 37 of the Industrial Disputes (Central) Rules, 1957.
[2.1] It is further submitted by Shri Oza, learned counsel appearing on behalf of the petitioners that as such subject settlement dated 08.08.2005 has been arrived at in course of the conciliation proceedings and in presence of the conciliation officer, signed by the respective parties and therefore, the terms of the said settlement is binding to all the parties to Industrial Dispute unless the said settlement is terminated after following due procedure as required. It is submitted that in the present case, admittedly, no notice of termination of the said settlement has been given by the Port Authority. It is further submitted that even the appropriate government has not considered it proper to initiate proceedings for termination of the subject settlement. It is submitted that on the contrary the respondent Port Authorities in its letter dated 10.08.2009 had admitted its liability to abide by the terms of the subject settlement. It is submitted that thus the subject settlement which is recorded under Section 12(3) of the ID Act has become final and the rights have been accrued in favour of the petitioners for regularization in service against the clear vacancies and until such regularization is made, they have acquired a right of temporary status. It is submitted that as such there is no valid justification not to implement the subject settlement. It is submitted that the failure on the part of the port authorities – employer to implement the settlement arrived at between the parties under Section 12(3) of the ID Act in its terms and true spirit has resulted in clear infringement of legal rights of the petitioners – incumbents. Shri Oza, learned counsel appearing on behalf of the petitioners has heavily relied upon the decision of the Punjab & Haryana High Court in the case of Jagdish Chand vs. Labour Commissioner & Ors. reported in 1995 II LLJ Page 410 (Paras 6 & 7) as well as the decision of the Division Bench of this Court in the case of Tulsiram Ramdas vs. General Manager reported in 1998 JX .
[2.2] Shri Oza, learned counsel appearing on behalf of the petitioners has submitted that as such the settlement arrived at in the course of conciliation proceedings is put at par with the award made by the adjudicating authority. Therefore, it is submitted that the legal rights of the petitioners – incumbents are crystallized under the subject settlement and the respondent Port Authority is statutorily obliged to honour the rights of the petitioners by implementing the said settlement. In support of his above submission, Shri Oza, learned counsel has relied upon the decision of the Hon'ble Supreme Court in the case of Barauni Refinery Pragatisheel Shramik Parishad vs. Indian Oil Corporation Ltd. & Ors. reported in AIR 1990 SC 1801 (Para 8) as well as decision of the Hon'ble Supreme Court in the case of National Engineering Industries Ltd. vs. State of Rajasthan & Ors. reported in (2001) 1 SCC 371.
[2.3] It is further submitted by Shri Oza, learned advocate appearing on behalf of the petitioners that as such the respondent Port Authority has implemented the settlement in part with respect to two employees and the settlement has not been implemented so far as the petitioners are concerned. It is further submitted that even the settlement was partly implemented also by giving a temporary status to the petitioners, however, subsequently even the said temporary status has also been withdrawn which is absolutely in breach of violation of the settlement entered into under Section 12(3) of the ID Act. It is submitted that the respondent Port Authority is a statutory authority and is “State” within the meaning of Article 12 of the Constitution of India and is bound to comply with the settlement entered into under Section 12(3) of the ID Act which is considered to be at par with the award of the Tribunal / Labour Court. It is further submitted that under the subject settlement all the petitioners incumbents have acquired right to hold temporary status in the cadre of SubEngineer (Civil) and entitled to be regularized in service as and when clear vacancy into the cadre of SubEngineer (Civil) is available with the respondent Port Authority more particularly when all the petitioners were appointed/recruited by following due procedure of selection prescribed under Regulation. It is further submitted that initially the respective petitioners were appointed on adhoc despite they were recruited by following procedure of selection prescribed under the Regulation. However, in view of the subject settlement now they are regulated by the terms of the subject settlement and they are entitled to temporary status till their service have been regularized as and when the vacancy in the cadre of SubEnigneer (Civil) is available. It is further submitted by Shri Oza, learned counsel appearing on behalf of the petitioners that respondent Port Authority by regularizing services of 8 adhoc appointees from amongst total 26 recruitees have implemented settlement dated 26.06.2003. It is further submitted that thereafter by regularizing services of two more adhoc appointees and conferring status of temporary employees over the left over persons (petitioners herein) also partly implemented the subject settlement. It is submitted that now respondent Port Authority is not implementing the subject settlement even though clear vacancies are available on which the petitioners can be absorbed and/or their services can be regularized. It is submitted that at present there are 14 clear vacancies in the cadre of SubEngineer (Civil) available, which can be filled in by implementing the subject settlement. However, by not regularizing the service of the petitioners on the available vacant post of SubEngineer (Civil) and/or even in giving them the temporary status till their services are regularized, is absolutely illegal, arbitrary, discriminatory and violative of Article 14 of the Constitution of India.
[2.4] It is submitted that as the earlier settlement dated 26.06.2003 has been implemented by the respondent Port Authority in toto and have implemented the subject settlement in part, the respondent authority has partly accepted the settlement and therefore, as per the decision of the Hon'ble Supreme Court in the case of Gandhidham Nagarpalika Adipur(Kutch) vs. R.C. Israni & Ors. reported in 1993(1) LLJ 432 (Para 7), it is not open for the respondent authority not to accept the settlement as a whole. It is submitted that as held by the Hon'ble Supreme Court the settlement has to be accepted or rejected as a whole and it is not possible to scan the settlement in bits and pieces and hold some parts goods and the others bad. It is submitted by Shri Oza, learned advocate appearing on behalf of the petitioners that the respondent Port Authority is not implementing the subject settlement in its totality and true spirit under pretext of government guidelines restricting the major ports to make recruitment at the entry level posts. It is submitted that without admitting applicability of such guidelines to the respondent Port Authority, even if a bare glance to the said guideline shows that the respondent Port Authority by constituting committee is permitted to fill up 1/3rd direct recruitment vacancies subject to overall ceiling of 1% of the sanctioned strength of the port. The total strength of staff sanctioned under section 23 of the Major Port Trust Act, 1963, in the set up of the respondent Board is more than 3800 and total sanctioned post in the cadre of SubEngineer (Civil) as per the schedule of Board Staff of the Kandla Port Trust is 29, out of which 15 posts have been filled in whereas remaining 14 posts are lying vacant. In the circumstances, the respondent Port Authority is in position to implement the subject settlement by regularizing services of petitioners – incumbents on the vacant posts of SubEngineer (Civil). It is further submitted that the socalled ban on the recruitment has been lifted by the Central Government with effect from October, 2010 and, therefore, as on date there is no ban on recruitment in force and there is no impediment whatsoever in the way of the respondent Port Authority to implement the subject settlement in its true spirit. Thus, Shri Oza, learned counsel appearing on behalf of the petitioners has requested to set aside the act and omission on the part of the respondent Port Authority in the matter of implementation of subject settlement in its true spirit and in its entirety.
Making above submissions and relying upon above decisions, it is requested to allow the present Special Civil Applications by directing the respondent No.1 Port Authority to implement the settlement arrived at under Section 12(3) of the ID Act in its true spirit and toto.
[3.0] Petitions are opposed by Shri Dhaval Vyas, learned advocate appearing on behalf of the respondent – Kandla Port Trust – employer. It is submitted that as such all the petitioners came to be appointed as Junior Officers with a specific stipulation of period of appointment as also clarifying that such temporary adhoc would not confer any right to the respective appointees for being regularized. Therefore, it is submitted that as such it is not open for the petitioners to claim the regularization in services.
[3.1] It is further submitted that the petitioners raised a reference under the ID Act which came to be disposed of on the submission of the consent terms, which were signed by the President of Union and the then Deputy Secretary and Assistant Secretary of the Kandla Port Trust. It is submitted that before entering into the said settlement by the officers, no approval or sanction was either sought for or granted by the competent authority of Kandla Port Trust.
[3.2] It is submitted by Shri Dhaval Vyas, learned advocate appearing on behalf of the Kandla Port Trust that the aforesaid settlement was placed before the Chairman for its implementation, however, the Chairman directed to examine the powers with respect to any settlement and/or compromise done by the Kandla Port Trust, since it had come to notice that several settlements were done by the officers without the permission of the competent authority. It is submitted that in pursuance to such instructions of the Chairman that the settlement in question was taken to scrutiny, whereupon it is found upon a vigilance inquiry that the regularization of SubEngineers (Civil) after 20012002 to 2005, are in contravention to the Government of India's instructions and the SubEngineers who have been regularized after 2004, no specific approval of the competent authority has been obtained. Therefore, it is submitted that as the settlement has found to be I contravention to the Government of India's instructions and signed by the officer who had no authority to enter into any settlement, the respondent authority has rightly not implemented the same.
[3.3] It is further submitted by Shri Vyas, learned advocate appearing on behalf of the Kandla Port Trust – employer that the effect of settlement would be to regularize the persons who would otherwise not be eligible to be recruited to the said post under the Rules and Regulations.
[3.4] It is further submitted that in pursuance to the notice issued by the Assistant Labour Commissioner for implementation of the award/settlement, a reply is already given by the Secretary – Kandla Port Trust on 10.08.2009 that they are examining the issue so as to find out a way to honour the settlement in its true spirit without committing breach of instructions/guidelines as issued by Government of India from time to time as well as provisions of the ID Act. It is submitted that before any further steps can be taken by the respondents, the petitioners have preferred the present Special Civil Applications for enforcement of settlement award dated 08.08.2005.
[3.5] It is further submitted by Shri Vyas, learned advocate appearing on behalf of the Kandla Port Trust that law provides that a settlement, in essence a contract between the employer and the workmen prescribing new terms and conditions of service. On conclusion, the contract embodied in it takes effect and conditions would stand modified and such modified terms of contract would continue to govern the relations between the parties. The transaction (of settlement) would be a contract. Therefore, the enforceability / legality of such settlement would have to be tested on the principles which relate to a contract under the Indian Contract Act, 1872. It is further submitted by Shri Vyas, learned advocate appearing on behalf of the Kandla Port Trust that section 34(3) of the Major Port Trusts Act, 1963 would provide “No contract which is not made in accordance with the provisions of this Act and the regulations made there under shall be binding on the Board.” Subsection (1) would provide that a contract shall, on behalf of a Board, be made by the Chairman (or by any such officer of the Board not below the rank of the Head of a Department as the Chairman may, by general or special order, authorize in this behalf) and shall be sealed with the common seal of the Board. Section 24 provides powers to make appointment, which would except for the posts provided under (a), be exercisable by the Chairman or by such authority as may be prescribed by regulation. The regulations would provide that the appointing authority (to such post) would be the Head of the Department (as nominated by the Chairman). It is submitted that in the present case, admittedly, the signatories to the settlement were neither the Head of the Department not authorized in law. Admittedly, sanction of such authority has also not been taken. Therefore, in law, the settlement would not be binding on the Board of Trustees of Kandla Port.
[3.6] It is further submitted by Shri Vyas, learned advocate appearing on behalf of the Kandla Port Trust that it would be permissible to ignore the settlement or even belittle the fact of such settlement if such settlement is found to be contrary to the mandatory provisions of the Act or there is nonconformance to the norms by the settlement would be subjected to judicial scrutiny. Therefore, it is submitted that effect may not be given to a settlement which would be unjust and unfair. Making above submissions and relying upon the decisions of the Hon'ble Supreme Court in the case of the Union of India vs. Arulmozhi Iniarasu reported in AIR 2011 SCW 4252, it is requested not to exercise powers under Article 226 of the Constitution of India and to dismiss the present Special Civil Applications.
[3.7] Shri Dhaval Vyas, learned advocate appearing on behalf of the respondent – Kandla Port Trust has also relied upon the decision of the Hon'ble Supreme Court in the case of National Engineering Industries Ltd. vs. State of Rajasthan & Ors. reported in AIR 2000 SC 469 (Para 25) as well as the decision in the case of ITC Ltd. Workers' Welfare Association and Anr vs. Management of ITC Ltd. and Another reported in (2002) 3 SCC 411 (Paras 14 to 23) in support of his request to dismiss the present Special Civil Applications.
[4.0] In reply, Shri R.J. Oza, learned counsel appearing on behalf of the petitioners has relied upon the decision of the Hon'ble Supreme Court in the case of Koshi Project Worker's Association and Ors. vs. State of Bihar and Ors. reported in (2001) 1 LLJ 275 by submitting that as held by the Hon'ble Supreme Court in the said decision, when a settlement has been reached between the parties and that settlement is binding upon the respondent, driving the parties to an industrial dispute will not be an appropriate course. It is submitted that as held by the Hon'ble Supreme Court in the said decision that when a settlement has been arrived at under the ID Act, the said settlement can be enforced and it is not necessary that its terms are to be enforced only by way of raising an industrial dispute and that it could be even by way of suit or even writ petition, if the relief sought for is against the authority or any other remedy that may be permissible under the law and not necessary one under Section 10 of the ID Act.
[4.1] Shri Oza, learned counsel appearing on behalf of the petitioners has also relied upon the decision of the Hon'ble Supreme Court in the case of National Engineering Industries Ltd. vs. State of Rajasthan & Ors. reported in (2001) 1 SCC 371 (Para 24) in support of his above submissions.
Making above submissions and relying upon the above decisions, it is requested to allow the present Special Civil Applications.
[5.0] Shri P.S. Champaneri, learned Central Government Standing Counsel has appeared on behalf of respondent Nos.3 and 5 and Ms. Archana Amin, learned advocate has appeared on behalf of respondent No.4. Despite the matters are adjourned on number of occasions so as to enable respondent Nos.3 and 5 to make their stand clear as it was the contention on behalf of respondent Nos.1 and 2 that in view of the policy of respondent Nos.3 and 5 and the ban imposed they are not in a position to regularize the services of the petitioners, however, no reply has been filed on behalf of respondent Nos.3 to 5 till date. Thus, basically, the petitions have been opposed by respondent Nos.1 and 2 only.
[6.0] Heard the learned advocates appearing on behalf of the respective parties at length In all these petitions the main prayer of respective petitioners is to direct respondent Nos.1 and 2 to implement the settlement dated 08.08.2005 arrived at between the petitioner Union and respondent No.1 under Section 12(3) of the ID Act in its true spirit and in totality.
[6.1] It is not in dispute that the Union raised an industrial dispute for nonregularization of the services of the respective petitioners on the post of SubEngineer (Civil). It was the case on behalf of the Union and the petitioners that at the relevant time the respective petitioners were enrolled with the local employment exchange office and respondent No.1 notified various vacancies in the cadre of SubEngineer (Civil) and invited names of the eligible persons for appointment to the post from various employment exchange offices. It was the specific case on behalf of the petitioners / Union that names of the petitioners were forwarded by the employment exchange to respondent No.1 and respondent No.1 required the petitioners to undergo process of selection by written test/interview before the selection committee constituted as per the Recruitment Regulations, 1964. According to the petitioners, the said selection was for appointment in the pay scale of Rs.2425852680 10030801204760 on temporary basis. According to the petitioners and the Union, the selection committee recommended name of selected candidates and respondent No.1 Port Trust issued fresh orders appointing 26 selected persons including the petitioners. According to the petitioners and the Union, their appointment were not made on temporary basis in regular pay scale but it was made on adhoc basis for 90 days with artificial break of one day in service. It was the case on behalf of the petitioners and Union that respondent No.1 Port Trust by applying artificial break in service for one day in record had issued similar appointment orders time to time and the petitioners were continued in service in pursuance to the said appointment orders. According to the petitioners and Union, thereafter respondent No.1 Port Trust passed orders regularizing services of 11 appointees from the list of total 26 appointees, however, the services of the remaining appointees – petitioners herein were not regularized and therefore, the Union raised a dispute and conciliation proceedings were initiated before respondent No.4 herein – Assistant Labour Commissioner (Central), Adipur. It appears that during the course of conciliation and after protracted discussions and persuasion of respondent No.4 – ALC, both the parties agreed to settle the dispute by drawing the memorandum of settlement under Section 12(3) of the ID Act and it was agreed that looking to the Senior Junior Engineers (Civil) working on Temporary / Adhoc basis against project / regular vacant posts in KPT will be regularized within two months against the existing vacancies and that the left over Junior Engineers (Civil) working on temporary / Adhoc basis in KPT against project / regular posts will be given temporary status and they will also be regularized as and when there will be vacancy on regular basis, as per roster. It is to be noted that the said memorandum of settlement was signed by one Shri P.B. Thangdi and Shri Suresh Balan who appeared on behalf of the employer who were Deputy Secretary and Assistant Secretary respectively and the said settlement was also signed by the General Secretary of the Union. It is required to be noted that the said settlement dated 08.08.2005 which has been entered into under Section 12(3) of the ID Act came to be implemented also and two Junior Engineers (Civil) who were appointed along with the petitioners on ad hoc basis, their services came to be regularized by implementing the aforesaid settlement dated 08.08.2005. Not only that even respective petitioners were also conferred with temporary status pursuant to the settlement dated 08.08.2005 and they continued to be in service as Junior Engineer (Civil) (temporary) without any break upto 30.06.2007. However, all of a sudden the respective petitioners were again served with the order of adhoc appointment with artificial break up of one day in service from 01.07.2007. Therefore, not only the petitioners' services were not regularized but despite the settlement dated 08.08.2005 entered into under Section 12(3) of the ID Act, even the temporary status given to the respective petitioners also came to be withdrawn which is in clear breach of the settlement entered into between the Union and respondent No.1 under Section 12(3) of the ID Act which was before the conciliation officer i.e. respondent No.4 herein. Hence, the petitioners have preferred the present Special Civil Applications for the aforesaid reliefs.
[6.2] Present petitions are opposed by respondent Nos.1 and 2 mainly on the ground that the settlement is not just and proper and/or the persons who signed the settlement were not authorized to sign the settlement as there was no resolution passed by the Board to enter into settlement and/or authorizing those two persons to sign the settlement. However, it is required to be noted that except submitting so in the present special civil applications, no efforts have been made by respondent Nos.1 and 2 by approaching respondent No.4 before whom the settlement was arrived at pointing out that the officers who signed the settlement were not authorized to sign the settlement. As stated herein above, on the contrary the Board implemented the settlement dated 08.08.2005 in part and two Junior Engineers (Civil) came to be absorbed / regularized pursuant to the settlement dated 08.08.2005 and even the respective petitioners were also given temporary status and they continued in service with temporary status without any break for approximately more than two years after the settlement. Therefore, as such the Board implemented and acted as per the settlement entered into under Section 12(3) of the ID Act and therefore, subsequently it is not open for respondent Nos.1 and 2 now to back out and/or to contend that the officers who signed the settlement were not authorized. It is to be noted that the officers who signed the settlement represented respondent Nos.1 and 2 and participated in conciliation proceedings and only thereafter the settlement has been entered into. Under the circumstances, as such there is no justification for respondent Nos.1 and 2 now not to implement and/or act as per the settlement dated 08.08.2005 which has been entered into under Section 12(3) of the ID Act.
[6.3] It is next contended on behalf of respondent Nos.1 and 2 that as such by the settlement dated 08.08.2005, services of the petitioners who were appointed on adhoc were required to be regularized which is not permissible and their services cannot be regularized as they were not appointed after following due procedure is concerned, the aforesaid has no substance. It is to be noted that along with the petitioners in all 26 Junior Engineers (Civil) came to be appointed after calling names from the employment exchange and after following due procedure as required i.e. written test, selection etc. out of which service of 13 employees was regularized earlier and after the settlement dated 08.08.2005 the services of other two employees who were covered under the settlement are also regularized. It is required to be noted that in any case the settlement dated 08.08.2005 is not challenged by respondent Nos.1 and 2 and/or respondent Nos.1 and 2 have never approached the conciliation officer before whom the settlement was arrived at making the grievance, which is made in present petitions, and as such the settlement dated 08.08.2005 entered into under Section 12(3) of the ID Act stands. As stated herein above, as such respondent Nos.1 and 2 have already implemented and acted as per the settlement dated 08.08.2005 partly by regularizing the services of two employees like the petitioners. As held by the Division Bench of this Court in the case of Gandhidham Nagar Palika, Adipur (Kutch) (Supra), the settlement has to be accepted or rejected as a whole.
[6.4] As held by the Hon'ble Supreme Court in the case of National Engineering Industries Ltd. (Supra) a settlement of dispute between the parties themselves is to be preferred, where it can be arrived at, the industrial adjudication, as the settlement is likely to lead to more lasting peace than an award. It is further observed that settlement is arrived at by the free will of the parties and is a pointer to there being good will between them. It is further observed by Hon'ble Supreme Court that when there is a dispute that the settlement is not bonafide in nature, or that it has been arrived at on account of fraud, misrepresentation or concealment of facts or even corruption and other inducements it could be subject matter of yet another industrial dispute which an appropriate government may refer for adjudication after examining the allegations when there is an endless assumption that the settlement reached with the help of conciliation officer must be fair and reasonable. As stated herein above, no such steps have been taken by respondent Nos.1 and 2 challenging the settlement dated 08.08.2005 and as stated herein above, the settlement dated 08.08.2005 under Section 12(3) of the ID Act stands.
[6.5] As stated herein above, the settlement dated 08.08.2005 still exists. It also cannot be disputed that any settlement arrived at in conciliation proceedings under Section 12(3) of the ID Act has a legal sanctity as an award of Labour Court and considering Section 18 of the ID Act, the same is binding to the parties. As observed by the Hon'ble Supreme Court in the case of National Textile Corporation (Apkkm) Limited vs. Yellamma Cotton, Woolen And Silk Mills Staff Association reported in (2001)2 SCC 448, a settlement once entered into between parties shall be operative until the same is terminated as provided in Section 19 of the ID Act. A similar view has been expressed by the Hon'ble Supreme Court with respect to the binding effect of the settlement arrived at under the ID Act in the case of Life Insurance Corporation of India vs. D.J. Bahadur reported in (1981)1 SCC 315.
[6.6] Now, so far as the contention on behalf of the respondents
with respect to nonmaintainability of the present petitions under Article 226 of the Constitution of India for implementation settlement dated 08.08.2005 entered into under Section 12(3) of the ID Act is concerned, as observed by the Hon'ble Supreme Court in the case of Kochi Project Workers Association and Ors. vs. State of Bihar and Ors. reported in (2001) 1 LLJ 1685, a settlement between the parties entered into under the ID Act can be enforced without raising industrial dispute, by way of suit or writ petition if the relief sought for is against the authority or remedy permissible under the law. In the present case it cannot be disputed that respondent Nos.1 and 2 are statutory authorities and can be termed as Authority under Article 12 of the Constitution of India. At this stage, decision of the learned Single Judge of the Punjab & Haryana High Court in the case of Jagdish Chand vs. Labour Commissioner and Ors. reported in 1995(2) LLJ 1995 also deserves to be referred to. As observed by the learned Single Judge (Coram: Mr. Justice G.S. Singhvi, as he then was), nonimplementation of the award without any justification by employer which is State within the meaning of Article 12 of the Constitution of India, in a petition under Article 226 of the Constitution of India, a writ of mandamus is maintainable and a writ of mandamus also can be issued.
[6.6] Now, so far as the decisions of the Hon'ble Supreme Court in the case of ITC Ltd. Worker's Welfare Association and Anr. (Supra) as well as the decision in the case of National Engineering Industries Ltd. (Supra) relied upon by the learned advocate appearing on behalf of respondent No.2 is concerned, on facts, the said decisions shall not be applicable as in the present case nobody has challenged the settlement dated 08.08.2005 before the Industrial Forum and as such as stated herein above, the settlement stands as on today.
[7.0] In view of the above and for the reasons stated above, more particularly, when the settlement is entered into between the parties during the course of conciliation and under Section 12(3) of the ID Act which has a binding effect as an award and which is binding to the parties as provided under Section 18 of the ID Act and considering the fact that infact respondent Nos.1 and 2 had partly implemented and/or acted upon the settlement dated 08.08.2005 regularizing services of two Junior Engineers (Civil) out of 13 employees and infact the respondent No.1 part trust also had given temporary status to the petitioners with continuity for more than two years after the settlement dated 08.08.2005, the action of respondent Nos.1 and 2 in not implementing and/or acting as per the settlement dated 08.08.2005 is absolutely illegal and discriminatory and violative of Article 14 of the Constitution of India and therefore, petitioners are entitled to the reliefs as prayed for.
[7.1] In view of the above and for the reasons stated above, all these Special Civil Applications succeed and respondent Nos.1 and 2 herein are directed to implement and act as per the settlement dated 08.08.2005 entered into under Section 12(3) of the ID Act and to consider the case of the petitioners for regularization as and when there are vacant posts and till then the respective petitioners be given temporary status. Rule is made absolute to the aforesaid extent in each of the petitions. In the facts and circumstances of the case, no order as to costs.
(M.R. Shah, J.) menon