MAKBUL HUSEN RAHIMBHAI MALEK Vs. KIRITBHAI A DESAI

JUDGEMENT

(1.) The applicant joined services as a compounder in Ruxmani Prasutigruh and Dawakhana managed by Jambusar Nagarpalika on October 6, 1988. The applicant approached Labour Court, Bharuch by filing reference (LCB) No. 244/96 challenging his termination. It appears that the dispute was settled in Lok Adalat and the Labour Court, Bharuch passed award in terms of settlement. Under the settlement, the applicant was to be reinstated on his original post without back wages. Said award was published in June, 1998. After the said award, the applicant made number of attempts by giving notices to the Respondent- Panchayat to comply with the award. However award of the Labour Court was not complied with by the Panchayat. Applicant, in fact, filed Writ Petition being Special Civil Application No. 8130/1999 for implementation of the award passed by the Labour Court, Bharuch This Court vide order dated October 15, 1999 by giving directions to the Government Labor Officer to process complaint dated August 24, 1998 and to take appropriate steps within a period of six weeks from the date of the order, accordingly dismissed the petition. Applicant filed present application under the provisions of the Contempt of Courts Act with a prayer to take action against the President of Jambusar Nagarpalika and also prayed to direct the opponents to comply with the directions contained in the award passed by the Labour Court in the reference (LCB) No. 244/96 as well as directions given by this Court vide order dated October 15, 1999 in Special Civil Application No. 8130/1999.

(2.) In pursuance to the notice issued by this Court, opponents have appeared and filed their affidavit. It was inter alia contended in the affidavit filed by the President of Jambusar Nagarpalika that the post in question was required to be filled in by roster i.e. by SC/ST candidates with necessary qualifications for which names of the candidates were called from the Employment Exchange. It was further stated that the settlement was arrived at by the then President Smt. F. A. Malek by bypassing reservations quota backlog posts converting the post in question into a general post by passing Resolution No. 148 dated February 19, 1999 and, therefore, guidance was sought for from the Director of Municipalities. In any case, in view of what is stated in the affidavit-in-reply, without entering into the merits of the case, we are of the view that prima facie no contempt has been committed by the opponents as the so-called breach in non-complying with the settlement arrived at before the Lok Adalat and endorsed by the Labour Court, Bharuch vide his award, is not a wilful breach in view of what is stated in the affidavit-in-reply. However, the workman cannot be left without any remedy. Since the applicant has foregone his back wages and accepted re-instatement without there being any adjudication of the dispute raised by him, we are of the view that the applicant must be allowed to pursue reference by way of review and for passing appropriate orders for reviving the reference. In our opinion, it is a good case for review in view of the fact that the settlement which was arrived at between the parties was incapable of being implemented lawfully. The only course open is to leave the parties to the position as existed prior to the settlement. In similar circumstances, this Court (Coram: A.P. RAVANI and K.R. VYAS, JJ), while dismissing Misc. Civil Application No. 766/1991 vide order dated August 2, 1991 in the case of Hemandra v. Vadnagar Gram Panchayat, Vadnagar, had asked the concerned workman to approach the Labour Court with a prayer of taking the matter in review and for passing appropriate orders for revival of the reference. In view of this, in the present matter also, we direct the applicant to file appropriate application for review for passing appropriate orders for revival of the reference. On such an application filed by the applicant, the Labour Court will decide the same in accordance with law. In view of the fact that the applicant was taking remedy by way of contempt in this Court, it will be a good ground for condonation of delay that may arise before the Labour Court. In view of this, it is directed that if the applicant files an application for review on or before July 17, 2000, the same will be considered in light of the observations made hereinabove.

(3.) Subject to the aforesaid observations and directions, application stands rejected. Notice discharged.