Gitaben Tribhovanbhai Gohil vs Mahuva Nagarpalika And Others

S.R. Brahmbhatt, J

The present application is taken up for seeking compliance with the order of Industrial Tribunal rendered on 16.5.2016, whereunder, the applicant was given the benefits of regularization on account of reasons cited therein.

During pendency of this petition, a writ petition came to be filed being Special Civil Application No. 19965 of 2016 by Mahuva Municipality, in which, the Nagar Sikshan Samiti, who is under direct control of the State as well as the State itself were already respondent.

The learned Single Judge on 29.4.2018 has extensively discussed the aspect qua the compliance of order of Industrial Tribunal by the respondents, distinct from Mahuva Municipality and recorded the clear consent from both the respondents, which needs to be set out hereunder for ready reference:

"3: In reply, after consultation with the claimant, Mr. Trivedi, learned advocate for respondent No. 2 submitted that his client is amenable to the said option and she has no objection if she/her service is regularised on the establishment of respondent No. 1 and her salary and benefits are accordingly fixed by respondent No. 1 in accordance with the award.

Respondent No. 1 was also\asked to state and clarify the said aspect (about vacancy and option/alternative viz. to reinstate the respondent No. 2 with respondent No. 1) by means of affidavit. Therefore, respondent No. 1 has filed additional affidavit dated 27. 10.2018 which is taken on record. The affidavit is served to learned advocate for respondent No. 2 as well as learned advocate for the petitioner and learned AGP for respondent Nos. 4 and 5.

Learned advocate for respondent No. 1, however, expressed practical difficulty on the ground of administrative instructions viz. that since the post has remained vacant on the establishment of respondent No. 1 for more than 3 years in view of the administrative instructions, the said vacancy/post is relegated to "inabeyance category" and that, therefore, respondent No. 1 has to seek permission from respondent No. 5 and Finance Department to revive the vacancy/post and installing it back on regular establishment.

Since respondent No. 1 who has to take some administrative action for the said purpose, following order is passed and time is granted to respondent No. 1.

Respondent No. 1 may submit an application to respondent No. 5 and the Finance Department and seek appropriate permission/sanction.

The concerned authorities shall, upon receipt of such application, immediately take up the same for appropriate orders and directions and pass necessary orders as expeditiously as possible but not later than four weeks from the date of receipt of the application. After such order is passed by the concerned department/authorities, respondent No. 1, on the basis of such orders, shall pass necessary order with regard to present respondent No. 2 and also with regard to the directions issued by the learned Labour Court.

It is clarified that respondent No. 5 and the Finance Department shall, while considering the application of respondent No. 1, keep in focus the award by the learned Labour Court. It appears that the submission (alternative suggestion) by respondent No. 1 is an amicable resolution of entire controversy and it is acceptable to all three parties involved in present litigation, i.e. the claimant, respondent No. 1 and the municipality. The respondents may complete the said process expeditiously within aforesaid time. The proceedings are adjourned to 11.12.2018."

Thus, it can well be said that on complete reading of the directions of the Tribunal in the order dated 16.5.2016, the relevant facts, which have not been disputed by anyone and the discussion in learned Single Judge's order dated 29.10.2018, it is observed clearly that the State was to implement the order of the Tribunal so as to give complete relief, as ordered by the Tribunal to the present applicant.

The Education Department of the State appears to have issued a resolution dated 11.6.2019, in our prima-facie view, is the cause for creating confusion and an attempt to nullify the end result of the entire litigation, as it was primary duty cast upon the State to give consequential benefits to the applicant, be through its agency called Sikshan Samiti or by Mahuva Municipality but in case, if the Mahuva Nagarpalika has its own reservation, the State cannot have absolve itself from primary liability of compliance, else, it would amount to shirking from its responsibility of compliance, though reviving the post in Nagar Samiti, putting it under Mahuva Nagarpalika and fastioning the responsibility upon Mahuva Nagarpalika to meet with expenses and/or to make liable for payment admissible to the applicant on account of order in question. This in our view was required to be viewed in an appropriate manner.

We hastened to add here that assuming for the sake of examination without holding that the State did have power to place this post under Mahuva Nagarpalika, then also, the recurring liability arising therefrom, is State's responsibility to be discharged to the applicant and applicant, therefore, cannot be rendered to an uncertainty, at times local authorities are even unable to meet with expenses of establishment. Bearing this in mind, when one looks at the resolution dated 11.6.2019, one has to conclude that action of State in assigning the post to the Mahuva Nagarpalika and fastioning the Mahuva Nagarpalika to bear and discharge the financial liability, would amount to effectively denying the fruit of litigation to the applicant.

We are not impress upon the submission canvassed by learned AGP Shri Utkarsh Sharma that State and officers of State, is not a party respondent in present proceedings, as the order of learned Single Judge, wherein, the State is party cannot be overlooked in the present proceedings.

At this stage Shri Utkarsh Sharma, learned AGP seeks time only upto 23.08.2019 to place on record the appropriate instructions, which in his expectation, would be resolving the entire issue, so that application itself could be disposed of on the adjourned date. The request for adjournment is accepted. At his request, matter is adjourned to 23.08.2019.