JUDGMENT : M. K. Thakker, J. 1. Rule returnable forthwith. 2. With the consent of both the parties, these petitions are taken up for final hearing. All three petitions are arising out of the same dispute, hence, same is discussed together. 3. This petition is filed under Article 14, 16, 226 and 227 of the Constitution of India seeking following reliefs: “To quash and set aside all the impugned orders and to direct the respondent Authorities to pay the amount of recovery to the petitioner, forthwith, in the interest of justice.” 4. Heard learned advocate Mr.Yogen Pandya for the petitioner and learned AGP Ms.Surbhi Bhati for the State. Learned advocate Mr.Yogen Pandya has submitted that petitioner was appointed as per the details below: in SCA No.19253 of 2021 in the year 1983, in SCA No.19253 of 2021 in the year 1979, in SCA No.19253 of 2021 in the year 1979. 5. Learned advocate Mr.Yogen pandya has submitted that the petitioner was appointed on Muster Roll as Permanent Daily Wager Canal Labourer-Chowkidar with respondent no.1 in the year 1983 run by Narmada Water Supply and Resources Department Government of Gujarat. Service of the petitioner was orally terminated from 01.08.1998, 15.07.1998 & 01.01.1999 without giving any reasons and without following any procedure under the Industrial Disputes Act, 1947. The industrial dispute was raised and same was referred to the learned labour court, Anand for the adjudication being reference no. 124/2000 and after hearing the respective parties, the award was passed in favour of the petitioner on 26.06.2012, 30.05.2012 & 30.05.2012 granting reinstatement without back wages with continuity of services. The said award of the learned labour Court was challenged by the respondent Authority before this Court by filling the Special Civil Application No.14147 of 2013, 14089 of 2013 & 14089 of 2013 which came to be rejected by this Court by directing the respondent no. 1 Authority to give effect of reinstatement to the petitioner workman in service within a period of 2 months from the date of order i.e. 07.10.2013 and has also held that petitioner shall be entitled for the wages from the date of order. Against aforesaid order Letters Patent Appeal cam to be filed alongwith application for condonation of delay, however, this Court has dismissed the appeal at the stage of condonation of delay. Against aforesaid order Letters Patent Appeal cam to be filed alongwith application for condonation of delay, however, this Court has dismissed the appeal at the stage of condonation of delay. The petitioner Chandubhai Kalubhai Vaghri thereafter, has approached to the learned labour Court, Anand for implementing award passed by the learned labour court by filing the recovery application being no. 10 of 2014 for the interregnum period of 01.06.2012 to 28.02.2014 for the amount of wages of Rs.4,41,108/-. The recovery application no.3 of 2016 was filed preferring the recovery amount of wages of Rs.5,20,048/- for the interregnum period of 01.03.2014 to 31.12.2015. The petitioner Bharatbhai Ramjibhai Rathod thereafter, has approached to the learned labour Court, Anand for implementing award passed by the learned labour court by filing the recovery application being no. 9 of 2014 for the interregnum period of 01.06.2012 to 28.02.2014 for the amount of wages of Rs.4,41,108/-. The recovery application no.2 of 2016 was filed preferring the recovery amount of wages of Rs.5,20,048/- for the interregnum period of 01.03.2014 to 31.12.2015. The petitioner Bhawanbhai Zalabhai Bharvad thereafter, has approached to the learned labour Court, Anand for implementing award passed by the learned labour court by filing the recovery application being no. 11 of 2014 for the interregnum period of 01.06.2012 to 28.02.2014 for the amount of wages of Rs.4,41,108/-. The recovery application no.1 of 2016 was filed preferring the recovery amount of wages of Rs.5,20,048/- for the interregnum period of 01.03.2014 to 31.12.2015. Thereafter, petitioner was ultimately reinstated in the service on 01.04.2016 and on that day the undertaking was taken from the petitioner that he will withdraw the recovery application unconditionally in lieu of reinstatement. Learned labour Court, after relying upon the aforesaid undertaking has rejected the recovery applications vide order dated 26.07.2021 which is challenged by way of present application before this Court. 6. Learned advocate Mr.Yogen Pandya submits that the petitioner has claimed the said amount in recovery proceedings as per the order passed by the learned labour court dated 07.09.2013 which was not complied by the respondent Authority till 31.03.2016. Instead of considering the conduct of the respondent Authority learned labour Court has taken into consideration of the undertaking which was forcefully taken on the condition of reemployment. Instead of considering the conduct of the respondent Authority learned labour Court has taken into consideration of the undertaking which was forcefully taken on the condition of reemployment. It is further submitted by the petitioner that since the petitioner was out of job and was hand to mouth he was not having any option except to sign the undertaking which was prepared by the respondent Authority. Learned advocate Mr.Yogen Pandya submits that the recovery of the due amount of wages is a legal right of the workman and same cannot be ignored by the employer. The respondent Authority has taken advantage of the situation of the petitioner who is unemployed and has no source of any income. Learned advocate Mr.Yogen Pandya submits that being the bread earner of the family the petitioner was passing from difficult situation and to maintain his livelihood, he signed the undertaking which resulted into the dismissal of the recovery applications. Learned advocate Mr.Yogen Pandya has relied on the decision rendered by this Court in the case of Balubhai Manjibhai Patel was State of Gujarat in Special Civil Application No.4289 of 2002 and submitted that the undertaking which was given by the petitioner for withholding the disbursement having no force of law and would not bind at all to the petitioner. By submitting the same, learned advocate Mr.Yogen Pandya prays to set aside the impugned orders passed in the recovery applications and to direct the respondent Authority to pay the amount as claimed in the recovery applications forthwith. 7. On the other hand, learned AGP Ms.Surbhi Bhati has submitted that the petitioner has voluntarily given undertaking before the Authority which was accepted during the cross-examination and otherwise also on the principle of no work no pay the petitioner is not entitled for the amount as prayed for in the recovery applications. Learned AGP Ms.Bhati has submitted that learned labour Court, after considering the contents of the undertaking, has rejected the recovery applications and therefore, no interference is required. 8. Considering the submissions made by the learned advocates for the respective parties the mute question arises for the consideration is that undertaking which is filed at the time of reemployment by the petitioner would bind and would amount to wave the rights of wages which was ordered by the Court of law. 8. Considering the submissions made by the learned advocates for the respective parties the mute question arises for the consideration is that undertaking which is filed at the time of reemployment by the petitioner would bind and would amount to wave the rights of wages which was ordered by the Court of law. To consider this issue this Court deems it fit to refer the decision of the Apex court in the case of Central Inland Water Transport Corporation Limited and Another versus Brojo Nath Ganguly and Another reported in (1986) 3 SCC 156 as held as under: “83. Yet another theory which has made its emergence in recent years in the sphere of the law of contracts is the test of reasonableness fairness of a clause in a contract where there is inequality of bargaining power. Lord Denning, MR, appears to have been the propounder, and perhaps the originator -at least in England, of this theory. In Gillespie Brothers & Co. Ltd. v. Roy Bowles Transport Ltd. where the question was whether an indemnity clause in a contract, on its true construction, relieved the indemnifier from liability arising to the indemnified from his own negligence, Lord Denning said (at pages 415-416): The time may come when this process of 'construing' the contract can be pursued no further. The words are too clear to permit of it. Are the courts then powerless ? Are they to permit the party to enforce his unreasonable clause, even when it is so unreasonable, or applied so unreason- ably, as to be unconscionable ? When it gets to this point, I would say, as I said many years ago: ‘there is the vigilance of the common law which, while allowing freedom of contract, watches to see that it is not abused: John Lee & Son (Grantham) Ltd. v. Rallway Executive It will not allow a party to exempt himself from his liability at common law when it would be quite unconscionable for him to do so. (emphasis supplied) In the above case the Court of Appeal negatived the defence of the indemnifier that the indemnity clause did not cover the negligence of the indemnified. It was in Lloyds Bank Ltd. v. Bundy that Lord Denning first clearly enunciated his theory of "inequality of bargaining power". (emphasis supplied) In the above case the Court of Appeal negatived the defence of the indemnifier that the indemnity clause did not cover the negligence of the indemnified. It was in Lloyds Bank Ltd. v. Bundy that Lord Denning first clearly enunciated his theory of "inequality of bargaining power". He began his discussion on this part of the case by stating (at page 763) : There are cases in our books in which the courts will set aside a contract, or a transfer of property, when the parties have not met on equal terms, when the one is so strong in bargaining power and the other so weak that, as a matter of common fairness, it is not right that the strong should be allowed to push the weak to the wall. Hitherto those exceptional cases have been treated each as a separate category[in' itself. But I think the time has come when we should seek to find a principle to unite them. I put on one side contracts or transactions which are voidable for fraud or misrepresentation or mistake. All those are governed by settled principles. I go only to those where there has been inequality of bargaining power, such as to merit the intervention of the court. (emphasis supplied) He then referred to various categories of cases and ultimately deduced there- from a general principle in these words (at page 765): Gathering all together, I would suggest that through all these instances By virtue of it, the English law gives relief to They rest on 'inequality of bargaining power'. there runs a single thread. one who, without independent advice, enters into a contract on terms which are very unfair or transfers property for a consideration which is grossly inadequate, when his bargaining power is grievously impaired by reason of his own needs or desires, or by his own ignorance or infirmity, coupled with undue influences or pressures brought to bear on him by or for the benefit of the other. When I use the word 'undue' I do not mean to suggest that the principle depends on proof of any wrongdoing. The one who stipulates for an unfair advantage may be moved solely by his own self-interest, unconscious of the distress he is bringing in to the other. I have also so avoided any reference 10 the will of the one being 'dominated or overcome' by the other. The one who stipulates for an unfair advantage may be moved solely by his own self-interest, unconscious of the distress he is bringing in to the other. I have also so avoided any reference 10 the will of the one being 'dominated or overcome' by the other. One who is in extreme need may knowingly content to a most improvident bargain, solely to relieve the straits in which he finds himself. Again, I do not mean to suggest that every transaction is saved by independent advice. But the absence of fit may be fatal. With these explanations, I hope this principle will be found to reconcile the cases. (emphasis supplied)” 84. Though the House of Lords does not yet appear to have unanimously accepted this theory, the observations of Lord Diplock in 4. Schroeder Music Publishing Co. Ltd. v. Macaulay (formerly Instone) are a clear pointer towards this direction. In that case a song writer had entered into an agreement with a music publisher in the standard form whereby the publishers engaged the song writer's exclusive services during the term of the agreement, which was five years. Under the said agreement, the song writer assigned to the publisher the full copyright for the whole world in his musical compositions during the said term. By another term of the said agreement, if the total royalties during the term of the agreement exceeded £ 5,000 the agreement was to stand automatically extended by a further period of five years. Under the said agreement, the publisher could determine the agreement at any time by one month's written notice but no corresponding right was given to the song writer. Further, while the publisher had the right to assign the agreement, the song writer agreed not to assign his rights without the publisher's prior written consent. The song writer brought an action claiming, inter alia, a declaration that the agreement was contrary to public policy and void. Plowman, J., who heard the action granted the declaration which was sought and the Court of Appeal affirmed his judgment. An appeal filed by the publishers against the judgment of the Court of Appeal was dismissed by the House of Lords. The Law Lords held that the said agreement was void as it was in restraint of trade and thus contrary to public policy. An appeal filed by the publishers against the judgment of the Court of Appeal was dismissed by the House of Lords. The Law Lords held that the said agreement was void as it was in restraint of trade and thus contrary to public policy. In his speech Lord Diplock, however, outlined the theory of reasonable ness or fairness of a bargain. The following observations of his on this part of the case require to be reproduced in extenso (at pages 1315-16): My Lords, the contract under consideration in this appeal is one whereby the respondent accepted restrictions upon the way in which he would exploit his earning power as a song writer for the next ten years. Because this can be classified as a contract in restraint of trade the restrictions that the respondent accepted fell within one of those limited categories of contractual promises in respect of which the courts still retain the power to relieve the promisor of his legal duty to fulfil them. In order to determine whether this case is one in which that power ought to be exercised, what your Lordships have in fact been doing has been to assess the relative bargaining power of the publisher and the song writer at the time the contract was made and to decide whether the publisher had used time his superior bargaining power to exact from the song writer promises that were unfairly onerous to him. Your Lordships have not been concerned to inquire whether the public have in fact been deprived of the fruit of the song writer's talents by reason of the restrictions, nor to assess the likelihood that they would be so deprived in the future if the contract were permitted to run its full course. It is, in my view, salutary to acknowledge that in refusing to enforce provisions of prov of a contract whereby one party agrees for the benefit of t the other party to exploit or to refrain from exploiting his own earning power, the policy which the court is implementing is not some 19th-century public policy whit economic theory about the benefit to the public of general freedom of trade, but the protection of the tion of those whose bargaining power is weak against being forced by those whose bargaining power is stronger to enter into bargains that are unconscionable. Under the influence and of laizrez faire the courts in 19th century abandoned the of Bentham the practice of applying the public policy against unconscionable bargainsidered to be generally, as had formerly done to any contract no policy survived in its application to penalty clauses and usurious; but the to relief against forfeiture and also to the special category of contracts in restraint of tradt. If one looks at the reasoning of 19thcentury judges in cases about contracts in restraint of trade one finds lip service paid to current economic theories, but if one looks at what they said in the light of what they did, one finds that they struck down a bargain if they thought curre it was unconscionable between the parties to it and upheld it if they thought that it was not. So I would hold that the question to be answered respects a con- tract restraint of trade of the kind with which this appeal is concerned the "Was the bargain feir The test of fairness is, no doubt, whether both reasonably restrictions are both necessary for the protection of the legi timate interets of the promisee and commensurate with the benefits secured to the promiser under the contract. For the purpose of this test all the provisions of the contract must be taken into consideration. (emphasis supplied) Lord Diplock then proceeded to point out that there are two kinds of standard orms of contracts. The first is of contracts which contain standard clauses which "have been settled over the years by negotiation by representatives of the commercial interests involved and have been widely adopted because experience has shown that they facilitate the conduct of trade". He then proceeded to state: "If fairness or reasonableness were relevant to their enforceability the fact that they are widely used by partics whose bargaining power is fairly matched would raise a strong presumption that their terms are fair and reasonable". Referring to the other kind of standard form of con- tract Lord Diplock said (at page 1316) The same presumption, however, does not apply to the other kind of standard forms of contract. This is of comparatively nodern origin. It of particular kinds of butinest in relatively is the result of the concentration of particu in the 19th century provide what are probably Jew hands. The ticket cases atendard form of contruct the first examples. This is of comparatively nodern origin. It of particular kinds of butinest in relatively is the result of the concentration of particu in the 19th century provide what are probably Jew hands. The ticket cases atendard form of contruct the first examples. The terms of this kind of stena have not been the subject of negotiation between the partics to it, or approved by any organisation representing the interests of the weaker party. They have been dictated by that party whose bargaining power, alone or in conjunction with others providing either exercised similar goods or services, enables him to say: 'If you want these goods or services at all, these are the only terms on which they are obtainable. Take it or leave it'. To be in a position to adopt this attitude towards a party desirous of entering into a contract to obtain goods or services provides instance of superior bargaining power. (emphasis supplied.) 89. Should then our courts not advance with the times? Should they still continue to cling to outmoded concepts and outworn ideologies ? Should we not adjust our thinking caps to match the fashion of the day? Should all jurisprudential development pass us by, leaving us floundering in the sloughs of 19th century theories ? Should the strong be permitted to push the weak to the wall? Should they be allowed to ride roughshod over the weak? Should the courts sit back and watch supinely while the strong trample under- foot the rights of the weak ? We have a Constitution for our country. Our judges are bound by their path to "uphold the Constitution and the laws". The Constitution was enacted to secure to all the citizens of this country social and economic justice. Article 14 of the Constitution guarantees to all persons equality before the law and the equal protection of the laws. The principle deducible from the above discussions on this part of the case is in consonance with right and reason, intended to secure social and economic justice and con- forms to the mandate of the great equality clause in Article 14. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. This principle is that the courts will not enforce and will, when called upon to do so, strike down an unfair and unreasonable contract, or an unfair and unreasonable clause in a contract, entered into between parties who are not equal in bargaining power. It is difficult to give an exhaustive list of all bargains of this type. No court can visualize the different situations which can arise in the affairs of men. One can only attempt to give some illustrations. For instance, the above principle will apply where the inequality of bargaining power is the result of the great disparity in the economic strength of the contracting parties. It will apply where the inequality is the result of circumstances, whether of the creation of the parties or not. It will apply to situations in which the weaker party is in a position in which he can obtain goods or services or means of livelihood only upon the terms imposed by the stronger party or go without them. It will also apply where a man has no choice, or rather no meaningful choice, but to give his assent to a contract or to sign on the dotted line in prescribed or standard form or to accept a set of rules as part of the contract, however unfair, unreasonable and unconscionable a clause in that contract or form or rules may be. This principle, however, will not apply where the bargaining power of the contracting parties is equal or almost equal. This principle may not apply where both parties are businessmen and the contract is a commercial transaction. In today's complex world of giant corporations with their vast infra-structural organizations and with the State through its instrumentalities and agencies entering into almost every branch of industry and commerce, there can be myriad situations which result in unfair and un- reasonable bargains between parties possessing wholly disproportionate and unequal bargaining power. These cases can neither be enumerated nor fully illustrated. The court must judge each case on its own facts and circumstances.” 9. This Court has also considered the decision rendered by the full bench of Hyderabad in the case of R.C.C. (Sales) Private Limited and another Vs. E.S.I. Corporation and others. Reported in AIR 2016 Hyderabad 134 which is reproduced hereinbelow: 10. “24. The court must judge each case on its own facts and circumstances.” 9. This Court has also considered the decision rendered by the full bench of Hyderabad in the case of R.C.C. (Sales) Private Limited and another Vs. E.S.I. Corporation and others. Reported in AIR 2016 Hyderabad 134 which is reproduced hereinbelow: 10. “24. It is true, in the ESI Act, there does not exist an express prohibition against contracting out of the beneficial provisions of the ESI Act. But, at the same time, there is no provision which intend to permit such contracting out of the beneficial provisions of this Act, and therefore, in our opinion, it is imperative to see whether this Act is in- tended to have a more extensive operations as a matter of public policy. It is equally true that every one has a right to waive and agree to waive advantage of law or rule/regulation made solely for the benefit and protection of the individual in his private capacity. But such right cannot be dispensed with if it is likely to infringe any public right or public policy. A democratic society is founded on the rule of law and any practice which seeks to subvert or circumvent the law strikes at its very root. When the Court discountenances such practice, it only safeguards the foundation of the society [see Rattan Chand Hira Chand (1991 AIR SCW 496) (supra)]. Having regard to the scheme of the ESI Act, we do not have a slightest doubt that it was enacted for the benefit of industrial workers and the object of this Act is one of public policy. Therefore, the question is whether parties can, by their consent, contract out of the beneficial provisions of such Act? The answer to this question is obviously in the negative since contracting out of the beneficial provisions of this Act would infringe upon the public rights or public policies. Any agreement, which tends to be injurious to the public or against the public good, is liable to be invalidated on the ground of public policy. In other words, no one can lawfully do that which has a tendency to be injurious to the public or against the public good. The very meaning of the public policy is in the interest of others than the parties and that the interest cannot be at the mercy of any party alone. 26. In other words, no one can lawfully do that which has a tendency to be injurious to the public or against the public good. The very meaning of the public policy is in the interest of others than the parties and that the interest cannot be at the mercy of any party alone. 26. We have already observed that an agreement or a contract, which seeks to waive an advantage of law, is void on the ground of public policy. The definition of employees, in the present case, was enacted for the benefit of all workers covered by the definition. There can be no doubt that the provisions of Section 2 (9) of the ESI Act were enacted for protecting employees from employers and there is a public policy underlying it, which, in our opinion, precludes an employee from waiving his benefits. In any case, any agreement, which tends to be injurious to an employee or against his interest or public good, is liable to be invalidated on the ground of public policy. The legal maxim A pactis privatorum publico juri non derogatur means that private agreements can- not alter the general law where a contract, express or implied, as observed in Mannalal Khetan (supra), is expressly or by implication forbidden by statute, no court can lend its assistance to give effect to such agreement. The parties cannot contract out of the statute and take recourse to such a procedure which would for all intent and purport make the provisions of Section 2(9) and 2(22) of the ESI Act nugatory by entering into contractual arrangement or otherwise. Section 2(9) of the ESI Act was undoubtedly enacted only for the benefit of employees or for protecting the employees/workmen. Thus, the question referred must be answered in the negative. 28. Hence, the question referred is answered in the negative declaring that the statutory obligations/rights under ESI Act cannot be contracted out by the employer and the employee/union and such contracts are void and unenforceable. Order accordingly.” 11. Keeping in mind the above ratio, if the facts of the present case is to be referred then it is undisputed that the petitioner was ordered to be reinstated by judgement and award dated 26.06.2012. Order accordingly.” 11. Keeping in mind the above ratio, if the facts of the present case is to be referred then it is undisputed that the petitioner was ordered to be reinstated by judgement and award dated 26.06.2012. This Court has also confirmed the order and dismissed the petition on 07.10.2013 by directing the respondent Authority to reinstate the petitioner workman within a period of 2 months and has held that petitioner shall be entitled to the wages from date of award that is 26.06.2012. Though the aforesaid order attains finality and the Letters Patent Appeal which was preferred was dismissed at the stage of condonation of delay, the petitioner was not reinstated up to 31.03.2016 and he was reinstated by the respondent Authority on 01.04.2016. The undertaking which is filed by the petitioner workman on 01.04.2016 i.e. on the date of reinstatement, reveals that recovery application no. 9 of 2014 and 2 of 2016 are withdrawn unconditionally and petitioner is also bound by the further orders if any passed by the High Court. 12. During the adjudication of the recovery application, it is admitted by the respondent Authority that there were no orders passed by any court in any of the proceedings to obtain such undertaking. It is further admitted that the petitioner workman on receiving the award has come for resuming the duty on 03.06.2012, however, he was not permitted and only on filing undertaking he was reinstated on 01.04.2016. So far as the amounts mentioned in the recovery applications is concerned, the same is not disputed by the respondent Authority. 12.1. The ground on which the applications were rejected is only the undertaking which was produced below Exh.20 before the learned labour Court. The petitioner workman who is unemployed since 1998 would have no choice except to surrender himself to the respondent Authority as he cannot afford to lose his job because if he does so, there are not many jobs waiting for him. The act of taking the under taking is entirely unconscionable. The government and its agencies and instrumentalities constitute largest employment in the country and calling for such type of undertaking for the condition of job is opposed to the public policy also and therefore, same is void under section 23 of The Contract Act. The act of taking the under taking is entirely unconscionable. The government and its agencies and instrumentalities constitute largest employment in the country and calling for such type of undertaking for the condition of job is opposed to the public policy also and therefore, same is void under section 23 of The Contract Act. The respondent Authority had attempted to over reach the orders passed by the Court of law and has sought undertaking to deprive the legitimate rights of the petitioner workman and therefore, the practice seeking such type of undertaking should be deprecated. 12.2. The submission of the learned AGP Ms.Bhati regarding no work no pay is not required to be dealt with as order of learned labour Court has attend finality before this Court and therefore, no question now arises to reopen the stage of adjudicating the matters. Hence, this Court does not deem fit to discuss further with regard to the above contention. 13. In view of the same this Court deems it fit to allow these petitions by setting aside the orders passed in all above referred recovery applications (No.1/2016, 11/2014, 2/2016, 9/2014, 3/2016 & 10/2014) dated 26.07.2021 and respondent Authority is directed to pay the amount mentioned in the above recovery applications within a period of 8 weeks from the date of this order.